Hospitals and hospices cannot ignore Lasting Power of Attorney

The Court of Protection (CoP) has issued a powerful censure to healthcare providers, affirming that a Lasting Power of Attorney (LPA) is a legal mandate and not mere guidance. This ruling indicates that bypassing an attorney, when it comes to key healthcare decisions, constitutes an unlawful breach of statutory duty.

Facts:

RW, a 72-year-old man who suffered from advanced dementia and a traumatic brain injury, had been a long-term resident of a care home. Having no family, he had appointed a solicitor, Ms. Evans, as his LPA for his property, affairs, health and welfare. Following a seizure in late December 2025, RW was admitted to a hospital managed by the Cwm Taf Morgannwg Health Board. Although the hospital was explicitly informed by the care home that Ms. Evans held the LPA and was the person to be contacted regarding his care, the hospital had failed to engage with her for over two weeks.

Over this fortnight, hospital clinicians made critical decisions regarding RW’s life and treatment. After he failed to tolerate nasogastric tube feeding and began refusing oral nutrition, the medical team determined he had reached his “baseline” function. On 8 January 2026, the hospital transitioned his care to a palliative “comfort care” pathway, effectively withdrawing active treatment and nutrition. These life-altering decisions were made without any consultation with Ms. Evans, in direct violation of the Mental Capacity Act (MCA) 2005. In fact, Ms. Evans only discovered the withdrawal of treatment on 12 January through the care home, after which she visited the hospital to find that the staff were initially reluctant to recognise her legal authority.

Faced with the hospital’s refusal to revert to active treatment or provide clear assurances, Ms. Evans issued urgent proceedings in the CoP. A consensus was eventually reached to return RW to his familiar care home with an agreed ceiling of care.

RW was discharged on 23 January and passed away peacefully four days later in the presence of familiar staff. Ms. Evans sought a declaration that the Health Board had acted unlawfully by failing to consult her when making treatment decisions for RW in January 2026, and sought costs on an indemnity basis.

Decision:

The CoP ruled that the Health Board failed to comply with Section 4 of the MCA 2005 in its dealings with the patient before 13 January 2026 and ordered the Board to pay Ms. Evans’s costs of proceedings, but refused the indemnity costs.

The Cwm Taf Morgannwg Health Board subsequently admitted that its actions were unlawful, acknowledging a specific failure to comply with Section 4 of the MCA 2005, particularly the mandatory duty to consult a legally appointed LPA when making best-interests decisions. This admission was formally recorded in the Court’s final order. However, the Court did not allow the matter to end with a simple apology and required the Health Board to conduct a root cause analysis and appoint a new “central point of contact” to ensure that attorneys are never bypassed again.

In a move that serves as a financial penalty for the Health Board, the Judge departed from the general rule that each party pays their own costs in such welfare cases. The Judge found that “but for” the litigation, the hospital would not have restored RW’s treatment or consulted the LPA. The Board’s conduct was deemed “unreasonable” enough to justify this shift, though the Judge stopped short of awarding higher “indemnity” costs because the Board apologised early in the proceedings.

Implications:

This case is a reminder that an LPA is not merely a piece of paper but a powerful legal mandate that clinical teams cannot ignore. The judgement reaffirms that Section 4(7) of the MCA 2005 is not optional and that the LPA holder is the statutory voice of that person. If a clinician makes a best-interests decision (especially regarding life-sustaining treatment) without consulting a known LPA, that decision is unlawful.

A significant implication for lawyers is the Judge’s use of “but for” reasoning. The Court accepted that, without the threat of a court application, the hospital would likely have continued on a path that ignored the patient’s legal rights. The Court proved it is willing to penalise public bodies financially for “unreasonable” conduct. This case provides a precedent for seeking costs against a Health Board if it fails to engage with an LPA until a court application is filed.