The following case is fictitious but based on the types of calls we receive to the MDU advice line.

The scene

An elderly male patient was being assessed in the emergency department by a junior doctor. The patient had been found in the street after falling over, and a member of the public had called for an ambulance.

The patient appeared well and had no apparent injuries other than an ankle sprain that was causing him some difficulty in weight bearing, but he had evidence of cognitive impairment and was unable to explain why he'd fallen. The early intervention team had assessed him and were concerned that he was unsteady on his feet because of the ankle injury, and wasn't able to process the physiotherapist's instructions well enough to be able to use a stick or walking frame safely.

The physiotherapist recommended that he be admitted for a period of analgesia and physiotherapy. The patient seemed amenable to this suggestion and the doctor had been arranging admission when the patient's niece arrived.

She said that she did not want her uncle to be admitted to hospital 'under any circumstances,' explaining that the last time he had been admitted he had developed an acute delirium, had been very distressed by the experience, and had been in hospital for weeks.

She said her uncle's cognitive impairment was worsening, and that while he had not been formally diagnosed with dementia, everyone (including his GP) suspected this was the case, and he had been referred to the memory clinic.

The niece was very anxious that her uncle be allowed home, saying that she was sure it was not in his best interests to be admitted and that she and the family could support him in the short term and would consider a respite placement if he was not back on his feet safely soon.

She added that she held a lasting power of attorney (LPA) for her uncle and told the junior doctor that because of this, she would be taking her uncle home. The junior doctor asked if she had a copy of the LPA with her. She responded tersely that she didn't 'have a copy in her handbag.' The doctor was anxious to avoid a confrontation with the niece and decided to call the MDU.

MDU advice

The MDU adviser suggested that when considering these types of cases, it can often be helpful to consider three questions:

• Does the patient have capacity?
• If not, is there a valid and registered LPA for health and welfare in place and available for scrutiny?
• If not, is one needed?

The adviser went on to explain that the first thing to consider was whether the patient had capacity to make his own decision about coming into hospital. If so, then it would be for the patient to decide - and it would be important to assess and record the capacity assessment regardless of the outcome. The doctor confirmed that the patient lacked capacity to make this decision as he couldn't retain information long enough to weigh it up and come to a decision, and that the niece had agreed her uncle lacked capacity to make this decision.

In circumstances like this, decisions about health would usually then be made by the treating doctor in the patient's best interests unless there was an LPA or advance decision in place. The second thing to consider was whether there was a valid LPA in place.

The adviser explained that it would be important to ensure that the niece was appointed as an attorney for 'health and welfare' - if the LPA were for 'property and finance', she would not have decision making authority for medical treatment.

The doctor said that he could not be sure what sort of LPA she had as she did not have the document with her and there was no record of it on the patient's hospital file. The MDU adviser said it was important to be able to see the entire document so the doctor could ensure this was a health and welfare LPA and verify the name of the patient and of the niece on the document. Some LPAs will also state specific powers for attorneys, or impose certain limits, beyond the general authority that standard LPAs provide.

Furthermore, all LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used. The adviser explained that the doctor could tell if the LPA were registered by looking at the front page of the document, which should have a perforated stamp at the bottom of the front page, saying 'Validated.'

A stamp or box - or both - on the front page of the form will also show the date of registration. The adviser said the doctor could familiarise himself with what a registered LPA should look like by looking at sample documents available on the OPG website.

Until the niece produced the document, the doctor could not be sure what power of attorney the niece had, and he asked if there was any other way of finding out if the patient had a registered LPA. The adviser explained that while it was possible to make an urgent enquiry of the OPG, a response could take up to 24 hours on a weekday, and requests emailed at weekends would not be actioned until the next weekday.

The adviser said that although it would be sensible to ask to see the LPA - and to keep a copy of the document on the patient's medical record - the most important question to consider currently was whether the LPA was needed. If the medical team and the niece agreed that admitting the patient wasn't in his best interests, this could be documented in the record and there would be no need to rely on the niece producing the LPA.

The doctor considered this. He said that he had been distracted by the discussion around power of attorney, but conceded that the information provided by the niece meant he agreed it would be in the patient's best interests to be discharged with support from his family.

The outcome

After discussing the case with the MDU adviser, the doctor further reviewed it with his consultant. The consultant agreed it would be in the patient's best interests to be discharged home with support from his family, on the understanding that he could return to the emergency department if there were any further concerns.

This plan was documented in the notes, along with the fact that the niece had said she held an LPA for her uncle. The niece and the doctor also agreed it would be helpful to have a copy of the document in the medical records so it could be referred to if needed for any future admissions, with the niece agreeing to bring a copy in the following day.