Advice & Information

Making sure your wishes are respected

Date: September 25, 2018 by IDU

The tragic case of Oliver McGowan, who died at Southmead hospital in Bristol after being given an antipsychotic drug against his and his family’s wishes, highlights the complexity of what exactly is in the  ‘best interests’ of a person who lacks capacity.

Oliver had epilepsy, cerebral palsy and autism and despite the family begging doctors not to administer antipsychotic drugs with known, although rare, serious side-effects, the teenager was given the drug and died as a consequence.

An inquest concluded that his death was due to hypoxic brain injury caused by seizures and Neuroleptic Malignant Syndrome (NMS), an adverse effect of the antipsychotic medication.  Whether the drugs were properly prescribed (it was concluded by the Coroner that they were) in this case is, perhaps, secondary to what may be a more significant issue.

The question that remains unanswered by the inquest is whether the wishes of someone with learning disabilities were given the weight they deserved compared to someone without those disabilities?

People mistakenly believe that their relatives’ wishes will prevail in these circumstances, but this is not the case.  The parents’ views and wishes would have been considered but, ultimately, it is medical practitioners who make the decision as to what treatment is in that person’s ‘best interests’.

The only sure way to make it more likely that your wishes and feelings are heeded in these circumstances is to make a Lasting Power of Attorney (LPA) or express those wishes in an Advanced Decision (also known as a ‘living will’).

There are two types of LPA, which provide different authority to your attorneys:

  1. Lasting power of attorney (property and financial affairs)
  2. Lasting power of attorney (health and welfare).

The only ‘catch’ of course is that an LPA can only be made by the donor at a time when they have capacity (as defined by the Mental Capacity Act 2005) to do so.

When that person has never had capacity to make that decision the Court of Protection can appoint a Deputy to act on behalf of a vulnerable individual. That can be a lengthy process, but the Court of Protection can make declarations or appoint a Deputy for Health and Welfare decisions empowered to act in time-critical situations.

An application for Deputyship may not have prevented the tragic outcome in Oliver’s case and the granting of an LPA similarly carries no guarantees.  However, both legal mechanisms give a greater degree of certainty that your wishes, especially in matters of health and welfare, will be respected.  Visit the IDU Legal website or call the FREE legal helpline on 0333 305 4357 to get a direct link to expert solicitors who can give you advice and assistance.