Hospital trust “failed to act in accordance with deceased’s advanced directive”

The family of a woman who was kept alive against her will have received a payout of £45,000.

After observing her mother lose independence through dementia and fearing that the condition could affect her in a similar way, 81-year-old Brenda Grant chose to make a living will.

A form of advance directive, the living will stated that if she were to suffer from a list of particular ailments or became no longer of sound mind, treatment to prolong her life should not be provided.

As well as setting out that food should not be given should this occur, it also stated that any distressing symptoms should be alleviated through appropriate pain relief, even if it could potentially shorten her life.

However, the living will was misplaced by the hospital and Mrs Grant was fed artificially for just under two years, contrary to her wishes.

Mrs Grant was left unable to walk, talk or swallow following a serious stroke in 2012. She spent almost three months in George Eliot Hospital before being fitted with a stomach peg – this meant that she could be fed directly. Mrs Grant was then sent to a nursing home.

Just before she was readmitted to hospital, Mrs Grant’s children were informed about the living will by her GP.

Whilst Mrs Grant’s daughter, Tracy, stated that the hospital had the advance directive, she said that it was concealed within a pile of medical notes.

Tracy also said that the GP took the stance of the family, contesting that the living will should be respected.

Afraid that the same thing could happen to others, Mrs Grant’s daughter took legal advice to highlight the case.

Settling out-of-court, the George Eliot Hospital Trust agreed to pay £45,000 after admitting liability.

Commenting on the case and the importance of advance directors was Graham Stott of 3PB Barristers. He stated:

“Living wills are becoming an important part of end of life planning but it is important that if a person does not wish to receive life-sustaining treatment following their losing the capacity to be able to consent to receive that treatment, that their wishes are set out clearly in an advance refusal or an advance directive, often called a living will, that is then registered with their GP and their medical records marked accordingly.  Healthcare professionals must then act in accordance with the living will or face possible criminal prosecution or civil liability.

“Without a valid living will, healthcare professionals will continue to act in that person’s ‘best interests’ once the person is unable to provide consent to the proposed treatment and those who may be appointed to act by a Lasting Power of Attorney (Health & Welfare) must also act in the person’s best interests under the Mental Capacity Act 2005 when deciding whether to refuse life-sustaining treatment.  A living will can, therefore, prevent issues of medical treatment being referred to the court to determine.”

Astrid Bowser from Certainty the National Will Register also shared her thoughts, stating: “A client leaving their Will safely stored with their solicitors is a sensible course of action that the majority of testators take, however ensuring the executors or beneficiaries can find it after the testator has died presents a complication that can emerge after the testator’s death.

“This complication is best expressed by the Will find results of 2017. At least one in every ten Certainty Will Searches undertaken by the legal profession resulted in a Will being located where the estate was presumed intestate or a later Will was discovered that revoked the Will the solicitor had been presented with to distribute the estate.”


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