Mental Capacity Case

Re E ( N and S v E v M and ors)

Senior Judge Lush

In Re E (N and S v E v M and ors) [2014] EWCOP 27, a case primarily concerned with the incidence of costs in a 'mixed' property and affairs and health and welfare case, Senior Judge Lush also had cause to consider the status of P's advance decision to refuse treatment ("ADRT," which she had also identified – colloquially – as a "Living Will") in circumstances where she subsequently made an LPA for personal welfare in which she repeated her treatment preferences.

Section 25(2)(b) of the MCA 2005 provides that an ADRT is not valid if P has created an LPA after the advance decision was made conferring authority on the done to give or refuse consent to the treatment to which the advance decision relates.

The judge held that although the ADRT and the LPA were signed on the same day and it was unclear which was signed first, the effect of section 9(2)(b) of the MCA 2005 was that the LPA was not created unless it was registered and the LPA was registered after the ADRT was signed. Section 25(2)(b) therefore applied and the ARDT was not valid.

The unfortunate consequence of the invalidity of the ADRT on the facts of this case (where the attorneys had disclaimed their appointment under the LPA) was that there was a danger that "the treatment preferences that E had expressed in both her Living Will [ADRT] and LPA would be lost and consigned to oblivion." The court therefore made a declaration under section 26(4) of the MCA 2005 that the advance decisions made by P in the Living Will and set out in the Schedule continued to exist and to be valid and to be applicable to her treatment.

Whilst we acknowledge the good sense and pragmatism of the decision (allowing as it does, P's clear wishes to be known and acted upon) it is somewhat problematic that the judgment declares the ADRT invalid in one paragraph and then declares it to be valid (based on the section 26(4) declaration) in the following paragraph.