Doctor gave inadequate regard to lasting power of attorney

What happened

Mrs Q had dementia. In summer 2012, she was in a community hospital after a bout of diarrhoea. Blood tests showed that she had high potassium levels, which is a medical emergency. Nursing staff consulted an out–of–hours GP, who was employed by Harmoni, an organisation that provided out–of–hours services to the NHS. The out–of–hours GP said that in order to be successfully treated, Mrs Q should be transferred to a different hospital. Mrs P, who had a lasting power of attorney to make health and welfare decisions on Mrs Q's behalf, was adamant that she did not wish Mrs Q to be moved from the community hospital and treated for her acute condition. She explained to the out–of–hours doctor that this was not what Mrs Q would have wanted and that she wanted her mother to have palliative care only.

After she saw Mrs Q, the out–of–hours GP explained that Mrs Q's condition was reversible and she discussed the treatment options with Mrs P. She explained that the situation was a medical emergency but that treatment could only be given at a different hospital. After a lengthy discussion, the out–of–hours doctor took legal advice about her preferred decision to arrange Mrs Q's transfer for treatment. Mrs P was then led to believe that her lasting power of attorney did not apply to the decision and she reluctantly agreed that Mrs Q could be transferred to a different hospital for treatment. While at this hospital, Mrs Q had a fall and died a few days later. Mrs P complained that, despite her lasting power of attorney, the out–of–hours GP intervened to arrange hospital treatment contrary to her wishes. She said that she was pressured into agreeing to this, and her mother's previously expressed wishes were overridden.

Mrs P also complained that the NHS England local Area Team, which commissioned the out–of–hours service, did not take her complaint seriously.

What we found

We partly upheld the complaint because we found no fault in how the local Area Team dealt with Mrs P's complaint.

We upheld Mrs P's complaint about Harmoni, which is now part of Care UK. The lasting power of attorney made Mrs P her mother's legal proxy in relation to the decision in question.

The out–of–hours GP told us that she felt that the decision made was in Mrs Q's best interests. She did not think that she had pressured Mrs P into making the decision and she believed that they had reached a consensus.

However, after we looked at all the evidence, we concluded that the out–of–hours GP did not take account of the authority given by the lasting power of attorney. Moreover, in reaching a view about what was in Mrs Q's best interests, the out–of–hours doctor focused on the clinical issues. She did not think about other factors, including what Mrs Q's legal proxy, in this case, her daughter, told her was what Mrs Q would have wanted.

Putting it right

Care UK, which took over Harmoni in winter 2012, apologised for the failings and paid compensation for the injustice that Mrs P suffered. It also drew up plans to learn lessons from the failings.