Following his recent presentation at the International Brain Injury Symposium 2014, hosted by the Royal Hospital for Neuro-disability, Warren Collins, partner at Penningtons Manches LLP provides a legal overview.

IT WILL NEVER HAPPEN TO ME

Because the vast majority of us think that brain injury only happens to others, very few make “legal” provision to plan for these events. As professionals working in the field of catastrophic injury, we all have many stories of how vibrant, active and meaningful lives can change so suddenly leaving a trail of emotional, physical and financial devastation in the wake of an unexpected brain trauma. The purpose of this paper is to look at the legal framework  of the rules and ethics that govern these tragic cases.

THE MENTAL CAPACITY ACT 2005

The Mental Capacity Act 2005 and its associated Code of Practice is the starting point for the legal position. This Act imposes a legal presumption that every adult has mental capacity to make decisions about their welfare, finances and property unless and until that presumption is rebutted with independent medical evidence.

Further, the fact that a patient wants to make an unwise decision is not in itself evidence of lacking mental capacity. In cases of disorders of consciousness (vegetative state or minimally aware), this is unlikely to be a major area of controversy but there are some cases of less severe brain injury where the distinction between capacity and no capacity is less clear cut. The Act introduced the concept of functional capacity so that a patient may have the mental capacity to make some types of decisions but not others.

ROYAL COLLEGE OF PHYSICIANS GUIDELINES 2013

Further guidance is provided by the RCP’s Prolonged Disorders of Consciousness: National Clinical Guidelines 2013. These guidelines do not alter the law but seek to set out some practical guidelines to clinicians handling these types of cases.

WHO MAKES DECISIONS FOR THOSE WHO LACK CAPACITY?

If it is determined that the patient lacks capacity, who makes decisions regarding his/her medical treatment? The concept of “next of kin” has no formal meaning in law. A spouse/partner or other close family member may certainly provide information that will assist in determining what is in the patient’s best interests but has no legal right to consent to or refuse medical treatment on behalf of the patient who lacks capacity.

DID THE PATIENT MAKE PLANS?

If the patient has previously made provisions for decision making when capacity was intact, the Mental Capacity Act provides that these must take precedence. In particular:

  • The patient may have made a Living Will” – i.e an advance decision in writing to refuse or request specific treatment in the event of subsequently lacking mental capacity. Clinicians must check for the existence of such a document.
  • The patient may have appointed someone else to make decisions on their behalf by a Lasting Power of Attorney (Welfare). This is a document which has to be approved by the Office of the Public Guardian appointing another individual to make decisions regarding their consent and refusal of medical treatment. These can include provision to refuse life-sustaining treatment. Note that this needs to be contrasted with a Lasting Power of Attorney (property and finance) which does not confer any decision-making powers relating to medical treatment.

IT’S YOUR RESPONSIBILITY!

Where there is neither a Living Will nor a Lasting Power of Attorney (Welfare), the clinical decisions are made by the treating clinician. Here the clinician must take all reasonable steps to identify and then act in the patient’s best interests. The best interests of a patient are normally identified as a result of discussions with all members of the multi-disciplinary team together with the close family members.

Where there are no family members able/willing to participate in this discussion process, an independent mental capacity advocate may be appointed but they have no legal standing to make decisions. This responsibility still rests with the clinician unless the Court of Protection has appointed a deputy to make health and welfare decisions. While it is common for the Court of Protection to appoint a deputy to make financial and property decisions, the appointment of a Court Appointed Deputy (Health and Welfare) is rare and they can never make end of life decisions (see below).

“BEST INTERESTS”?

Although the Mental Capacity Act does not give any clear definition of “best interests”, guidance is given by the Act and its Code or Practice. Section 4 provides:

  • “... the person making the determination must not make it merely on the basis of (a)the person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.”
  • “Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.”
  • “He must consider, so far as is reasonably ascertainable—(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.”
  • “He must take into account, if it is practicable and appropriate to consult them, the views of (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,(b) anyone engaged in caring for the person or interested in his welfare,(c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person's best interests.”

COMPENSATION CLAIMS

The patient in a state of minimal consciousness may have a claim for compensation if the brain injury was due to an accident caused by negligence, medical malpractice or a criminal assault that is subject to the Criminal Injuries Compensation Authority. In such cases, instructions to and advice from a lawyer must be given through a representative known as a Litigation Friend. Legal aid is generally unavailable for these claims but many lawyers will act under a Conditional Fee Agreement (no win, no fee) usually referred to as a CFA.

CFAs are not pure contingency agreements whereby the lawyer simply takes a percentage of the damages. Since April 2013, the success fee which a claimant’s lawyer previously recovered from the losing defendant can (subject to limitations) be charged to the claimant.

As claims arising from brain injuries may be of significant value, often running into millions of pounds, it is essential to ensure that the lawyer instructed has relevant expertise and experience. Accreditation of the individual lawyer handling the claim (not just his/her firm) on panels such as the Brain Injury Experts panel of APIL (the Association of Personal Injury Lawyers), Headway or Brain Injury Group is a good starting point.

It is often suggested that the patient’s family speaks to a few lawyers first before making a decision on representation. These cases often include claims for care, equipment, medical treatment, loss of earnings and accommodation as well as damages for the injuries themselves. While most claims are capable of resolution without the need for a trial, any settlement for a patient without capacity must be approved by the court before it is binding and any damages received will have to be directed to the Court of Protection.