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Lasting Powers of Attorney

Does social media really state your personal wishes?

| Published on January 4, 2019

A recent article for the Daily Mail states that British Medical Association (BMA) Guidance to its members suggests that doctors should consider emails and social media postings to determine whether or not their patients have any views on life or death that they can use to reach a life sustaining treatment decision.

The guidance has been understandably criticised by some doctors and in our view, rightly so.

It is generally well accepted that social media does not necessarily give an accurate reflection of a person’s views, and therefore reliance on statement posted on the internet hardly seems a safe way for doctors to reach conclusions as to whether a patient wishes to live or die.

Such statements are not legally binding. Therefore, emails and social media posts can only be considered to be persuasive to doctors, although we would suggest that there would have to be a consistent thread of stated wishes, rather than one or two comments on Facebook. We would also suggest that the context of any comments in line with the discussion thread would need to be examined carefully.

There are only two ways in which a person can legally determine their wishes with regard to life sustaining treatment decisions. A person can choose either an Advance Decision, or a Lasting Power of Attorney for Health and Welfare (LPAHW).

An Advance Decision is legally binding providing that it is drawn up correctly according to the principles of the Mental Capacity Act 2005. It is appropriate for people who have very clear wishes on life sustaining treatment and who do not wish any other person to make such a decision on their behalf.

A Lasting Power of Attorney allows you to appoint another person to make decisions of a health and welfare nature on your behalf, and the scope of a ‘Health and Welfare’ decision can include decisions regarding life sustaining treatment.

A clear advantage of appointing someone else under a LPAHW is that you can discuss your own thoughts, wishes and feelings relating to life sustaining treatment with that person and if they are ever called upon to decide for you, they will be armed with your point of view to enable them to make a decision you would approve of. The LPAHW can also take account of changing wishes, unlike an Advance Decision.

Alternatively, it is possible to make a LPAHW appointing a person to make decisions excluding life sustaining treatment decisions, which would then be made by the doctors treating you. It may also be a good idea to make an Advance Decision to direct the doctors as to your wishes alongside an LPAHW.

At Humphries Kirk we can guide you as to both Advance Decisions and Lasting Powers of Attorney and ensure that there is no risk that informal, humorous or ‘tongue in cheek’ comments made on the internet can decide whether you live or die.

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