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Advance Decisions V Lasting Powers of Attorney

Reasons to choose Wilson Browne

In two recent cases (NHS Cumbria CCH v Rushton (by her litigation friend, the Official Solicitor) and another [2018] EWCOP41) we look at the difficulties that may arise when an Advance Decision has been made.

The background of this case

Mrs Rushton worked as a nurse and married her husband with whom she raised her four children. Sadly after her husband passed away Mrs Rushton began to show the early signs of dementia. As such she signed an Advance Decision Refusing Treatment (ADRT) on 24th July 2014. In this ADRT she stated that ‘on collapse, I do not wish to be resuscitated by any means. I am refusing all treatment. Even if my life is at risk as a result…this direction is to be applied’. Mrs Rushton filed her ADRT with her GP.

On 21st December 2015, Mrs Rushton had an accident and suffered a major head trauma which was she was not suspected to survive. Fortunately she defied the doctors’ expectations and lived, although sadly she did not regain consciousness. The hospital was notified that there was an ADRT in place and contacted Mrs Rushton’s GP to learn the detail. As recorded in the hospital notes, the GP said that ‘the only ADRT in place is in regards to do not resuscitate’. Accordingly, the medical staff inserted a percutaneous endoscopic gastronomy (PEG) tube so that Mrs Rushton could receive nutrition whilst she was discharged home and it was anticipated that she would not live much longer.

However, Mrs Rushton was well-cared for by her youngest son and lived on for almost three years in a persistent vegetative state before the question of withdrawing treatment came before the court. The question posed was whether continuing to provide clinically assisted nutrition and hydration (CANH) would be in Mrs Rushton’s best interests, particularly in light of her earlier ADRT.

Outcome

The court first considered the interpretation of the ADRT. Where the treatment is life-sustaining an ADRT will only take effect if it is written, signed, and contains a statement to the effect that the ADRT is to apply to life sustaining treatment.

The use of the PEG was essentially a life-sustaining treatment in circumstances where there was little prospect of reasonable recovery. The hospital had understood that the only ADRT was to refuse resuscitation. However, the court held that this was incorrect. Whilst Mrs Rushton had not referred to a PEG in her ADRT, Hayden J found with “little doubt, to my mind, that the insertion of the PEG was contrary to Mrs Rushton’s written decision.” He added that the medical profession should give these advanced decisions much attention, and in this particular case, should not simply have been evaluated over the telephone.

The court endorsed the care plan which provided for the withdrawal of CANH, and Mrs Rushton passed a few weeks later.

Implications

Unfortunately, the failure of the medical professionals to sufficiently evaluate Mrs Rushton’s recorded wishes left her in the very situation she had tried so hard to avoid. It is arguable and there are certainly pro’s and cons to both Lasting Powers of Attorney (LPA’s) and Advance Decisions. However, had an LPA for Health and Welfare been in place appointing Mrs Rushton’s children as her Attorneys then perhaps this situation could have been avoided altogether? That is, provided Mrs Rushton had made her children aware of her wishes when it came to life-sustaining treatment.

This case makes it clear that any Advance Decision made needs to be as directive and unambiguous as possible. Any Advance Decisions should be reviewed as often as possible by the Donor. Medicine is forever evolving and it is possible that the medicine which was available to an individual when their Advance Decision was originally made may now have developed significantly. The benefit of an LPA is that it remains flexible and if your wishes change, then as long as your Attorneys know these wishes, you would hope that these wishes would be followed.

If you need any help or advice on the differences between Advance Decisions and Lasting Powers of Attorney then please call 0800 088 6004. You’ll be drawing on the experience and expertise of one of the most established teams in the area.

Stacy Jackson

Posted:

Stacy Jackson

FCILEx

Stacy is a Graduate member of the Institute of Chartered Legal Executives (GCILEx) and advises clients on Wills, probate, trusts, inheritance tax, lasting powers of attorney and more.