Religious Communities and the Mental Capacity Act

Many Religious Communities have an ageing population and encounter the same issues as the rest of society when caring for frail members of their community. However, for Religious Communities when a Religious lacks capacity or is in ill health, these problems are often exacerbated due to a lack of understanding amongst outside agencies such as the medical profession, and even in some case families, about what it means to be a member of a Religious Community and how the Religious would want their wishes to be fulfilled. For example, this can sometimes lead to hospitals refusing to give information about a sick Religious to other members of their Religious Community, or refusing to accept a member of a patient’s Religious Community as their “next of kin”.

Next of Kin

It is important to understand that, under English law, the term “next of kin” has no legal meaning. Individuals are often asked to nominate their next of kin when admitted to hospital or registering with a GP but such a nomination actually confers no legal rights or responsibilities. It merely enables someone to be notified in the event of a medical emergency. In addition, medical professionals will if appropriate take into account the views of the next of kin when making decisions on behalf of the patient. However, the next of kin cannot make decisions regarding medical care and cannot override any previously stated decisions of the patient.

Family members of a Religious often believe that their family connection automatically makes them the Religious’ next of kin and places them ahead of the other members of the Religious Community giving them a greater say in the care of their family member. This is not the case. Medical professionals do not always have any understanding of religious life and therefore misunderstand the relationship between the Religious and the other members of the Religious Community. This can often lead to acrimonious disputes with both the family and the members of the Religious Community seeking to advocate what is in the best interests of the Religious. The key issue for a Religious is to ensure that their wishes take precedence over those of family members or other community members, and remain consistent with their religious beliefs and vows. This can be achieved by using the provisions of the Mental Capacity Act 2005 (the Act).

The Mental Capacity Act 2005

The Act came into force in October 2007 and provides a framework for those making decisions on behalf of adults aged 16 and over who lack capacity to make their own decisions. The provisions of the Act can be used to ensure that the wishes of Religious can be fulfilled in a care or medical environment. The Act also provides a statutory framework to ensure that the individual’s wishes which have been stated are safeguarded and upheld.

If a person lacks capacity, decisions must be made on their behalf. Such decisions can range from every day choices about what a person wears and what they eat, to more fundamental issues about where they live and what medical treatment they receive.

The Act provides that when making a decision for someone else who lacks capacity that decision must be made in the person’s best interests. The Act sets out several factors which must be taken into account when deciding what is in someone’s best interests. These include:

  • The person’s past and present wishes and feelings, and in particular any relevant written statement made by them when they had capacity; and
  • The person’s beliefs and values that would be likely to influence their decision if they had capacity (which can include religious beliefs).

The decision maker must also take into account, if practicable and appropriate to do so:

  • The views of anyone named by the person as someone who should be consulted (which could include other members of the Religious Community);
  • Those who are engaged in caring for the person or are interested in their welfare; and
  • The donee of a Lasting Power of Attorney.

This means that those who are making decisions on behalf of members of Religious Communities, such as the medical profession, should not simply be consulting that individual’s family or next of kin. In fact, there is no reference to family members under the Act. Considering the views of those interested in the person’s welfare is a crucial part of deciding what is in that person’s best interests. The importance for the decision maker is to consider what is in the best interest of the person concerned and, in particular, the views that may have been expressed by that individual when they had capacity to express a view or the person of persons that they may have appointed to speak on their behalf. If members of a Religious Community give advance thought to how they want decisions made on their behalf should the need arise, it is possible to avoid many of the complications that arise if no advance planning has been carried out.

When does the Act apply?

Members of Religious Communities are often most concerned about the situation that will apply when they receive care either in a care home environment or in hospital. However, it is important to remember that the provisions of the Act have much wider impact. Religious participate actively in community life and this is central to their being. In some cases, when a member of a Religious Community loses capacity, they will continue to be cared for either in their community, or in a care environment that is operated by their Religious Community. Whilst in such settings the Religious can be assured that their care will be carried out in a way that is consistent with their beliefs, it is important to remember that the provisions of the Act still apply. If the Religious has not appointed someone to speak on their behalf, then the Religious Community cannot automatically assume that role falls to the Religious Community. In some rare cases it may be necessary to apply the provisions of the Act and appoint an independent advocate to speak on behalf of the Religious (for example when making major life changing decisions such as deciding to put the Religious into care). All Religious Communities should take care, when an individual Religious loses capacity, to understand who has authority to speak on behalf of the Religious and, where appropriate, take professional advice if there are concerns.

How can the provisions of the Act be used to protect a Religious’ wishes?

There are three main ways in which a member of a Religious Community can provide for their views to be taken into account should the situation arise:

  • By authorising named individuals to act in their best interests under a “Lasting Power of Attorney”;
  • By deciding in advance what medical treatments they may wish to refuse, by using an “Advance Decision” (or “Living Will”); and
  • By making known their views and identifying the key people that they want to be consulted as part of any decision making process using an “Advance Statement”;

We have considered each of these in more detail below.

Lasting Powers of Attorney

A power of attorney is a document which allows one person (the donor) to appoint one or more individuals (the attorney(s)) to make decisions on their behalf and can apply in many contexts.

Lasting Powers of Attorney are a particular type of power of attorney that allow individuals to appoint others to make decisions for them about key issues even when they lack capacity to make decisions for themselves. There are two types of Lasting Power of Attorney (LPA) introduced by the Act;

  1. Property and Financial Affairs LPA and
  2. Health and Welfare LPA.

The Property and Financial Affairs LPA allows someone to appoint attorney(s) to deal with their financial affairs. Clearly, in the context of Religious Communities, the need to deal with financial affairs may be of lesser significance. However, in some cases Religious may have assets of their own or patrimony that they need to be administered in the event that they lose capacity and may wish to consider a Property and Financial Affairs LPA. This note only deals with Health and Welfare LPAs, but further guidance can be provided on Property and Affairs LPA if required.

The Health and Welfare LPA allows an individual to appoint an attorney(s) to make decisions about their health and personal welfare issues, such as where they live, day-to-day care or having medical treatment. If the donor so chooses, this authority can extend to making decisions about the giving or refusal of consent to life-sustaining treatment.

The main drawback, for members of a Religious Community, is that it is necessary to appoint one or more named individuals to act as an attorney, so it is not possible to appoint the holder of a particular office (such as Provincial Superior) to act from time to time. The donor therefore has to give careful consideration to a suitable named individual to appoint as attorney. Clearly this can make it difficult to ensure that the donor appoints someone who understands the needs and demands of Religious life whilst at the same time maintaining the authority to respect the donor’s religious beliefs and the requirements of the Religious Community.

It would still be possible to appoint, for example, the existing Provincial Superior by name to act as attorney, but this has significant drawbacks:

  • The appointment would need to be updated every time the officeholder changes, by drawing up and registering a new LPA (this can be a costly exercise);
  • If the LPA is not updated, then when the donor loses capacity, the person named as the attorney will be appointed, not the current holder of the office whatever the intention may have been;
  • In many Religious Communities members are all of a similar age profile, that may lead to the donor appointing an individual to act as attorney who, due to their own health issues, loses capacity first before the donor.

In our experience, there are a number of options that can be considered to address this problem:

  • The donor can appoint more than one attorney, ie 2 or 3 named individuals who can be instructed to either act jointly, or independently. It would, for example, be possible to appoint both a family member and a member of the Religious Community and then instruct them to act together jointly. This would ensure that family wishes were respected whilst at the same time ensuring that the obligations of the Religious Community were honoured. This could, however, lead to difficulties if the joint attorneys were unable to agree on the individual’s best interests and there are other practical issues so we would not normally advise this course of action;
  • The donor can appoint substitute attorneys, so that if the named attorney loses capacity a back up can be named. A number of members of the Religious Community could be named, in order of preference. However, it is only really practical to name 2 or 3 substitutes.
  • The donor could appoint a number of members of the Religious Community, such as those with whom they live to act as their attorneys;
  • The donor could consider appointing family members or lay individuals, but then instructing that the wishes of the current Provincial Superior are to be taken into account (or at least provide that the officeholder is to be consulted).

An attorney appointed under a Health and Welfare LPA can only act once a person has lost capacity, therefore the donor retains the ability to make their own decisions until they are no longer able to make those decisions.

The LPA document allows the donor to instruct/authorise the attorney to make healthcare decisions on the donor’s behalf. The attorney can be given the right to consent to or refuse life-sustaining treatment on the donor’s behalf. The LPA can include instructions to the attorney that they must act in a certain way, e.g. must talk to a particular person before making a certain decision such as the Provincial Superior or other person in authority within the Religious Community. The donor can also include preferences about their wishes and feelings about a particular matter. Although preferences are not binding on the attorney they can help them decide what is in the donor’s best interests. Again, for a member of a Religious Community it may be helpful to set out guidance on religious beliefs and the impact these have on the way that the individual wishes their care needs to be addressed. It is important to ensure that such provisions are drafted carefully, as if they are vague or imprecise they may become unworkable. Whilst something may have made perfect sense to the donor at the time of drafting, it may mean nothing to a medical professional faced with an emergency situation.

It is not necessary to include instructions or preferences and, if the donor has complete faith in the attorney to understand and act in their best wishes, then it is possible to give the attorney complete flexibility as to how they act and not make any provisions at all.

Notwithstanding the provisions of the LPA, the attorney will still have to act in the best interests of the donor.

It is important to remember that the provisions of the LPA and the views of the attorney take precedence over the wishes of family, friends, next of kin (to the extent that this phrase has any meaning) and the Leader of the Religious Community or other individuals in positions of authority.

To make an LPA the donor and attorney have to complete a prescribed form available from the Office of the Public Guardian or through a solicitor. There must also be an independent person who provides a certificate to show that the donor of the Power understood the importance and nature of what was being done and was not pressured into making it at the time. The LPA must also be registered with the Office of the Public Guardian before the attorney can act but it will not then come into effect until the donor loses their mental capacity. A fee is payable at the time of registration, unless the donor’s income falls below a stipulated threshold.

Two issues that have to be borne in mind are:

  • The LPA is a binding legal document, medical professionals are therefore required by law to observe the provisions of the LPA (as are the attorneys).; This provides a further complication in that, once the donor loses mental capacity, they cannot then change the provisions of their LPA if they are no longer suitable. This therefore prevents flexibility in the use of the LPA.
  • The attorney can only take steps to consent to or refuse life sustaining treatment if this is specifically provided for in the LPA. The attorney also cannot require particular forms of medical treatment to be given, and has to work with the medical professionals to ensure that the treatment is appropriate in their opinion. In extreme cases the medical professionals may have to involve the Court of Protection if they feel that the interests of the donor are not being followed. In some cases it may be appropriate to consult a medical professional to advise on the particular provisions to go into the LPA, especially if the donor is already suffering from a pre-existing medical condition.

However, if the Religious has a LPA in place, this will ensure that the Religious’ views have to be followed provided that the attorney understands and respects these.

Advance Decisions

Advance Decisions are often referred to as “Living Wills” or “Advance Directives” but the correct description as set out in the Act is an Advance Decision.

The term Advance Decision is generally taken to describe a document which sets out a person’s wishes regarding their future medical care or treatment which is to be referred to at a time when the person is incapable of expressing his or her wishes.

It is a basic principle of English law that a mentally competent person can refuse medical treatment even if this is sure to lead to their death. Medical Professionals have a duty to respect a competent patient’s autonomy to make decisions in relation to their treatment.

An Advance Decision is therefore an extension of this principle. It is a decision to refuse treatment taken at a time when the individual is mentally competent to take effect at a time in the future when he or she is no longer mentally competent. It is not possible to demand a particular treatment under English Law. The Advance Decision will only come into effect when the individual loses mental capacity and can no longer make decisions for themselves.

There is no prescribed form for an Advance Decision. It can be oral or in writing however, it must be in writing if it relates to the refusal of life sustaining treatment and has to state that life sustaining treatment is refused even if life is at risk as a result. The statement must be signed, dated and witnessed. The Advance Decision does need to be very clear as to the type of medical treatment that is being refused.

As well as refusing treatment, the Advance Decision can include broader general statements about a person’s treatment preferences etc. These broader statements will act as guidance to medical staff when deciding what is in the person’s best interests but will not be binding on them.

An Advance Decision is a legally binding document and cannot be ignored by medical professionals. However, it can be changed without any great formality and a simple word or change of behaviour can be enough to change its provisions. It is sensible though to ensure that any changes are in fact documented to avoid confusion.

It can be made in conjunction with a Health and Welfare LPA, but the individual has to be careful to make sure that the two are consistent as an attorney under an LPA is not bound to follow the terms of an inconsistent earlier Advance Decision. In addition, if the individual makes an Advance Decision after the LPA that is inconsistent this can also complicate matters.

As with a LPA, the Advance Decision cannot be used to require medical professionals to carry out particular forms of treatment if the medical professionals, acting in the best interests of the individual, do not consider them appropriate. If the Advance Decision involves treatment that is necessary to sustain life, then any provisions must be in writing, signed and witnessed.

There are three main drawbacks of using an Advance Decision:

There is no named individual responsible for administering the individual’s wishes;
It cannot be changed once the individual loses mental capacity; and
If made when the individual is not suffering from any particular illness, it is almost impossible to predict what may happen and therefore any general wording that is used may not be binding as the medical professionals may decide the individual did not actually mean it to apply in the particular circumstances that arise.
An Advance Decision does however enable a Religious to give a clear indication to medical professionals about how they wish to be treated should the need arise.

Advance Statements

A LPA is a complex, and often costly, document to put in place. Due to the power being placed in the hands of the attorney to make life changing decisions on the part of the individual, it is important to ensure that the documentation is completed correctly. Advance Decisions are less complex to draw up, but as they are legally binding it is important to understand what decisions are being made.

A further, more informal alternative, is to consider making an Advance Statement. This is simply a statement made by the Religious of their wishes and is not legally binding. However, under the Act the medical professionals should consider the wishes that have been expressed and take them into account when making decisions on the Religious’ behalf or that affect their care. As this is a much more informal arrangement, it can take the form of a letter or even a note in the Religious’ medical records.

The problem with relying on an advance statement is simply that it is not legally binding. Whilst it will give medical professionals, family and other members of a Religious Community a clear indication of the Religious’ wishes about their care, the medical professionals are not duty bound to follow the wishes. The medical professionals must act in what they believe to be the Religious’ best interests, in the absence of any binding statement to the contrary.

The tension between Family and Faith

In our experience, whilst family members appreciate that a Religious is part of a Religious Community, when it comes to care arrangements or life changing decisions, family members often do not have enough of an understanding of a Religious’ faith or the obligations that are consistent with being a member of a Religious Community. Family members often perceive that they know best what their family member would want, notwithstanding the fact that the Religious is part of a wider Religious Community that may, in fact, have a greater understanding of what the Religious would have wanted.

In any situation the medical professionals will seek to act in the Religious’ best interests, but given the advances of medical science, this will not always be consistent with the Religious’ faith or wishes. By setting out clear parameters or at least an expression of wishes in an LPA, Advance Decision or Advance Statement, the Religious can often protect their way of life. In the absence of any such document, if the Religious loses capacity, there is no way to make their views known.

It is important to also consider the views of the Religious’ own faith and guidance that may be published.

How to ensure that the Religious’ wishes are followed

One difficulty is that, even if the Religious has been diligent and prepared an LPA or Advance Decision, they cannot always guarantee that this is brought to the attention of the relevant medical professionals. It is therefore necessary to ensure that once the LPA or Advance Decision has been drawn up, it is brought to the attention of the relevant individuals this can be by:

  • Ensuring the leadership team are aware of the document;
  • Filing a copy with the management of any care home where the Religious lives;
  • Sending a copy to the Religious’ GP and making sure that it is noted in the individual’s medical records; and/or
  • Providing a copy to key family members and explaining to them the significance of the decisions that have been made and the rationale for making them.

Other members of the Religious Community should also be aware of the provisions so that, if the need arises, they know where to locate a copy of the document so that it can be provided to the medical professionals for information. This is especially important in an emergency situation.

In addition, if a Religious is admitted to hospital, it is important to bring the documentation to the attention of the medical professionals as early as possible so as to ensure that the individual’s wishes are respected. In the event that the medical professionals or family members refuse to follow the wishes of the Religious as set out in an LPA or Advance Decision, it is important to seek immediate legal advice to ensure that the Religious’ wishes are followed.

In situations where an LPA or Advance Decision has not been made, it will be much harder for members of the Religious Community be involved in the decisions about the Religious’ care. However, even in these circumstances, it is important to remember that the ACT requires medical professionals to act in the best interests of their patients. This will include taking into account the past wishes and beliefs of a patient, including their religious beliefs and values and the views of those who are interested in their welfare. A Religious therefore has a right to expect that medical professionals will act in a way appropriate to their beliefs, when they themselves lack capacity to make decisions.

If a member of a Religious Community is admitted to hospital, it would therefore be appropriate for other members of the Religious Community to make the hospital staff aware of the beliefs of the individual. However, in emergency situations where medical professionals have to act fast, there is unlikely to be time for an in-depth discussion and the lack of a simple document will probably mean that the Religious’ wishes are overlooked. It is worth remembering that, where an individual Religious still has capacity, they are fully entitled to make it clear to the medical staff that they wish the staff to take into account the views of the members of the Religious Community when carrying out treatment.

How can Stone King help?

A LPA is a complex document and needs to be tailored to individual needs as part of a one to one consultation. However, from our experience of working for numerous Religious Communities we have developed a pro-forma Advance Decision (Living Will) that covers the key areas that are concern for Religious Communities. The pro-forma includes a general statement about who medical professionals should consult when making decisions about treatment, and an authority to disclose information about the Religious’ medical condition to their Religious Community. This can be made available for use by your Religious Community either with or without further guidance. We would be happy to come and talk to you about the advantages and disadvantages of LPAs, Advance Decisions and Advance Statements and, if appropriate, can put in place an appropriate price package to provide support in completing an LPA or Advance Decision for groups from a Religious Community.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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