In our last blog, we outlined some of the key differences between Next of Kin (NOK) and Lasting Power of Attorney (LPA). In this follow-up blog, we will explore a few recent examples of misuse of LPA, and lessons we can learn going forward.
LPA used for personal gain
In 2019, the Court of Protection Hub shared several rulings designed to safeguard and protect the donor’s (individual’s) resources, stipulating that the LPA must not use these funds for their own personal gain or that of others. In doing so the Court of Protection clarified that an LPA is not an advanced Will, and that it is the responsibility of the LPA to work in the donor’s best wishes in that specific area.
One such example of this can be seen in a case sentenced at Newcastle Crown Court in 2014. The LPA role was assigned to the daughter, Mrs W, who took on the active role of LPA when her father moved into residential care. However, Mrs W soon spent over £77,000 of her father’s money for her own personal benefit across three years, in what the judge described as an abuse of the system. The case resulted in Mrs W being given a 20-month suspended sentence and 100 hours voluntary work.
LPA assigned inappropriately
Another more recent example is shared within the Open-justice blog by Clare Fuller, who had been following a specific case through the court that highlights what can go wrong as well as why it is so important to assign an LPA.
Meanwhile, the Open-justice blog shared another case where the Office of the Public Guardian brought a challenge against the appointment of an LPA. This challenge was raised due to reasonable doubt of P’s Mental Capacity to assign an LPA at the time, following evidence of a recent brain injury. The mother who had been assigned as both LPAs had no objection to being reassigned as a deputy, however P’s father felt that he had the relevant decision-making ability. It was agreed that in 2019, P was unlikely to have had capacity to assign an LPA or manage either relevant area of his own affairs. This led to the court recommending new Mental Capacity Assessments to be made going forward with present LPAs being cancelled.
Organisational misconduct
On 29th December 2021, Jenny Kitzinger and Celia Kitzinger shared a troubling case on the website Open Justice Court of Protection. This case demonstrated the lack of knowledge and application of the Mental Capacity Act (2005) by London North West University Healthcare NHS Trust, who continue to be rated as Requires Improvement by Care Quality Commission.
In this specific case, the patient Mrs W had her nasogastric tube removed without consultation on the 10th November 2021. Clinicians then declined to reinstate the tube when challenged by Mrs W’s LPAs. The Trust then withdrew hydration provisions (i.e. water).
The Mental Capacity Act (2005) clearly directs that any non-emergency decision of treatment should be completed through a Best Interest meeting with appropriate consultation of all relevant parties. Then, if these professionals, family members and other relevant parties disagree, that an application to the Court of Protection should be made. However, there was no evidence of any of these legal and good practice steps were adhered to, requiring Mrs W’s son (one of the LPAs) to obtain urgent legal aid.
The first hearing took place on the 8th December 2021. During the course of this hearing, the Trust is reported to have apologised and recognised two key errors within the escalating series of events.
At this point in the proceedings, it was agreed that no further treatment or basic needs were withdrawn while the case was heard. At this point, Mrs W, had received no nutrition for 28 days.
On the second hearing which was held only four days later on the 13th December 2021, the Court was informed Mrs W had very sadly passed away the previous evening. Dr Chris Danbury, an independent expert, had visited and assessed Mrs W in this intervening time, giving evidence that Mrs W was at end of life care, but was not in a prolonged disorder of consciousness, recommending:
“reinstating the nasogastric tube, and then inserting a PEG, with a view to developing a care package that would enable her to spend her remaining time in the comfort of her own home (presumably an option her LPAs supported and believed that Mrs W herself would have wanted).”
As a result of this Serious Untoward Incident, a full investigation is to proceed at Board level. Concerns remain in how the Trust is training staff in use of the Mental Capacity Act, including knowledge of LPA.
Protecting people from harm
Each of these cases reflects a deep and widespread misunderstanding of the Mental Capacity Act, and the associated LPA process. The final case in particular is most concerning as it ultimately led to a dereliction of care and the death of a patient.
The Mental Capacity Act exists to protect and safeguard vulnerable people. As professionals, it is our duty to raise any issues we should encounter through safeguarding channels, the Office of the Public Guardian, or other relevant body.
For further information on LPA, including training and support, please get in touch. We offer Mental Capacity training for a range of settings, and can offer consultancy services for your setting.