Dementia and capacity issues in older people can cause havoc in a family. There are many possible causes of a lack of capacity such as dementia, brain injury or stroke. Sometimes the onset of symptoms is sudden, or it can be a more gradual process where dementia is present.
When a person is admitted to hospital suffering from a stroke or a brain injury the immediate concern is to get a medical diagnosis and see if there is treatment available. A medical approach is the dominant one and rightly so. But there is also a legal side to these type of situations which is often overlooked. These issues centre around “capacity” So what is capacity? It refers to a person’s ability to use and understand information in order to make a decision. If a person has had a stroke or is suffering from dementia their mind may be impaired or disturbed and they may be unable to state their will and preference in respect of decisions about their care.
So that then begs the question when someone has a stroke and their brain is impaired who makes decisions about their care? Who do doctors need to consult? Doctors will update the family on the recommended procedure but who exactly in the family is entitled to this information? Traditionally the spouse or partner of the person will be the one who is kept informed and if they have no objection, the rest of the family can also be notified. Doctors and nurses still ask patients who is the “next of kin” and record the answer in hospital notes but in actual fact the term “next of kin” has no basis in law. Strictly speaking “the next of kin” should not be making decisions on behalf of the patient unless the patient has previously appointed them as a Designated Patient Representative in a written document which has been signed and witnessed prior to the patient losing capacity. It is important to point out at this juncture that Enduring Power of Attorney does not relate to medical or healthcare decisions but to legal and financial ones.
Difficult situations may arise between family members who do not see eye to eye under normal circumstances but also in the case of parents who have remarried or who have new partners. Family dynamicy may be tense in such situations where a partner declines to share information with the rest of the family. Up until now doctors and nurses have had to be as diplomatic as possible when dealing with these type of situations but the lack of clarity has put doctors and nurses on shaky legal ground.
The real question is who would the sick person be comfortable sharing this information with if they were in a position to do so? A patient who has had a stroke is no longer in a position to make their wishes known. The answer is to lay all of this out in writing prior to becoming ill. It is possible to make an Advance Healthcare Directive if you want to refuse certain medical treatments in the future – you can record your wishes now incase you lose capacity in the future. You can state your care preferences in advance and most importantly appoint a Designated Healthcare Representative to make decisions on your behalf. You can refuse certain treatments if there is no prospect for your recovery to include being place on a ventilator, dialysis and artificial feeding. It is not possible to definitely request certain treatments in advance because doctors must retain the right to treat you with the benefit of their medical knowledge but it is possible to refuse treatments in writing before you lose capacity. There is a new Act coming into force soon called the Assisted Decision Making (Capacity) Act 2015. The decision to refuse certain treatments is enforceable in a court of law.
Even though you think that you are your relative’s next of kin don’t bet on that carrying weight into the future. Emer Lavin Eldercare can help you to make an Advance Healthcare Directive (sometimes called a “Living Will” which will enable you to set out your care preferences (advisory) and to refuse specified medical treatments if your health declines in the future. Go to www.emerlavineldercare.ie to book your consultation today.