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Tragic case highlights need to ensure your wishes are respected

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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, once again highlights the complexity of how exactly to determine what is in the best interests of a person who lacks capacity.

Oliver had epilepsy, cerebral palsy and autism. Press reports quote the family as saying that both they and the 18-year-old had implored doctors not to administer the antipsychotic olanzapine. 
But the teenager was given the drug (which has known, albeit rare, serious side-effects) and subsequently died as a consequence. An inquest concluded that his death was due to a combination of pneumonia and hypoxic brain injury caused by seizures and Neuroleptic Malignant Syndrome (NMS), an adverse effect of the antipsychotic medication.

How much weight do your wishes carry?

Whether the drugs were properly prescribed or not (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 an individual with learning disabilities, such as Oliver had, 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.

No doubt there were some very difficult medical decisions to be made and clearly the parents’ wishes would have been considered but, ultimately, it is the medical practitioners who make the decision as to what treatment is in that person’s ‘best interests’.

LPAs and the Court of Protection

The only way to make it more likely that an individual’s or their relatives’ wishes and feelings are heeded (or indeed challenged where there is disagreement) 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: lasting power of attorney (property and financial affairs) and lasting power of attorney (health and welfare). It is the latter that would have been the appropriate mechanism in this scenario, but of course 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 (as in Oliver’s case), the Court of Protection can appoint a Deputy to act on behalf of a vulnerable individual. That can be a lengthy process and, given the timescales and urgency, in this case it may not have been possible.

Acting quickly if the issue is urgent

However, there is scope to put situations like this before the Court of Protection if there is a disagreement as to what is in a person’s best interests. When there is a known issue with a proposed treatment and evidence over time of a preference for a course of treatment (as was the case here), then 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 here and the granting of an LPA similarly carries no guarantees, but both legal mechanisms give a greater degree of certainty that your wishes, especially in matters of health and welfare, will be respected. We can offer guidance and advice in respect of LPA’s, advanced/best interest decisions and applications to the Court of Protection for decisions on behalf of someone lacking mental capacity.

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