The recently implemented Mental Capacity Act (MCA) changes the way in which people can plan for a time when they may not be able to make decisions for themselves. For the first time you can influence decisions about your medical and social care. You can appoint someone to make decisions on your behalf with a “Personal Welfare” Lasting Power of Attorney (LPA), or make a legally binding advance decision to refuse certain treatments.

What is “Capacity”?

Legal capacity is the ability to make a decision. In most circumstances, people are able to make decisions for themselves, but to do this they must be able to take in and retain information, weigh up the pros and cons and understand the implications.

Capacity is specific to the decision being made, so you may have capacity for some decisions but not for others.

There are now ways of planning what will happen in case you lose “capacity” in the future, for example through an accident or a disease such as Alzheimer’s.

For medical and social choices, these plans will only come into use if you cannot make the decision yourself at the time. This is slightly different from the “Property and Affairs” LPAs, which deal only with financial matters and can be used while you still have capacity.

Medical Decisions

Some people would rather not think about medical choices, which may need to be made in the future. Others have opinions about what they feel would be appropriate. Using the MCA you can guide who makes those decisions and how they are made.

There are several medical situations in which your capacity may be affected (either temporarily or permanently). These might include trauma (i.e. accidents), loss of consciousness or dementia. Choices which may need to be made might include whether to have a blood transfusion, whether to be involved in medical research or education, or even whether to receive treatments (including artificial feeding or fluids) to prolong life.

There may be other judgements to be made, for example about where you are to live and who is to look after you. These social or welfare decisions can also be planned for.

Obviously it is impossible to foresee every situation that might arise. Anyone who decides on your behalf, including doctors as well as people you appoint for the purpose (“attorneys” described below), must by law act in your best interests. By thinking about what is important to you, you can help guide those decisions about your best interests in the event that you are unable to communicate your wishes.

Personal Welfare LPAs

You can appoint someone (or several people) to make welfare decisions on your behalf. This might be a close relative or a friend. The person is then called an “attorney”. They will only be consulted if you are unable to make a particular judgement for yourself.

The law gives some guidance on how the attorney should act. They will need to understand the simple principles of the Mental Capacity Act and act accordingly.

If you appoint more than one attorney, you can say whether they all need to act together or whether each can act alone as necessary.

Before it is valid, an LPA needs to be registered with the government’s Office of the Public Guardian (OPG). There is a fee for this.

Advance Decisions (Living Wills)

If while you have capacity you express a wish, there is a duty on those who might make decisions on your behalf in the future to consider that wish. Where you decide to refuse certain treatments, that wish can now be legally binding.

For example you may decide that you never wish to have a blood transfusion. The best way to do this is with a written, witnessed statement similar to a will. If you decide to refuse life-prolonging treatments then there must be such a written record.

You do not have the right to demand specific medical treatments. However, you can make your wishes clear and those making decisions about you in the future must consider those wishes when they decide your “best interests”.

How can we help?

These parts of the Mental Capacity Act were introduced in October 2007. We feel that the clearest way to promote your wishes is for you to discuss your needs with both a qualified lawyer and a qualified doctor. Together you can decide whether LPAs or Advance Decisions best achieve your aims, and how to implement them.

Marshall and Galpin have teamed up with Dr Ketan Shah of Oxford Medicolegal Consultancy to offer such a joint service.  Dr Shah is a full time NHS doctor who has worked in Oxford's hospitals for many years.  He has extensive experience of how medical decisions are made, and can help you to consider how you would like to be treated in the future.