CAPACITY AND CONSENT

http://www.bma.org.uk/ap.nsf/Content/mencapact05 M D Noble January 2008

Aims
• Capacity Act (7/4/05) • Introduction to the basic concepts • Look at a few examples

Objectives
• Principles of
– Consent – Capacity

• Basic skills to assess capacity • Considerations when capacity lacking • To begin to develop appropriate attitudes re patient autonomy

Consent
• Informed
– Appropriate level of information

• Competent
– Capacity

• Not coerced

Consent
• • • • Can be withdrawn Can be verbal, non-verbal or written Under age 16 may be competent (Gillick) Somebody with Power of Attorney for health matters can act on behalf of another (but not refuse life sustaining treatment unless specifically stated)

Case Law
• "As a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to enable him to understand fully what is proposed."

Capacity
• • • • • • Medical treatment Financial affairs Wills Contracts Discharge home etc Research

Mental Capacity Act 2005
• Five key principles
– – – – – Presumption of capacity Retain right for eccentric/unwise decisions Right of support for own decisions Best interests Least restrictive intervention

Capacity
• Assessing lack of capacity
– Who is responsible? – Not global
• Not related to diagnosis alone, age appearance or behaviour e.g. because Mr Smith has dementia it does not mean that he lacks capacity

– Issue specific – Capacity assessment should ultimately be carried out by the person making the decision – May fluctuate

Capacity
• Two stage test
– 1) Is there an impairment of, or disturbance in the functioning of the person’s mind or brain? – 2) Has it made the person unable to make a particular decision/is it relevant to this issue? – (Degree of proof)

Capacity(1)
• History
– Is it likely to fluctuate?

• Mental state Examination
– General evidence e.g. of STM

Capacity(2)
• • • • Understand the information Retain that information Use or weigh it up Communicate decision

Capacity
• Understanding
– Relevant information – Assist the process
• Nature of the decision • Purpose • Consequences of either choice

– How do we test understanding?

Capacity
• Retaining
– Poor Short Term Memory is not automatic disqualification – Information need only be retained for a short period – Specific to the issue – Should be assisted e.g. tapes, video

Capacity
• Weighing up
– Complex process – Mental state examination – Believing it

Capacity
• Weighing up
– Can’t use the information
• Anxiety disturbing thinking • Psychosis- delusions relevant to the decision • Anorexia belief in body image

Capacity
• Communicate decision
– Include simple movements

Case Law
• MB (Medical Treatment) • Refusal to have a Caesarian section because of a phobia of needles

Case Law
• Re MB (Medical Treatment) • “…at that moment the needle or mask dominated her thinking and made her quite unable to consider anything else.” • i.e. weighing up the information

Case Law
• C (Adult: Refusal of Treatment). • A patient diagnosed as a chronic, paranoid schizophrenic refusing to allow his gangrenous foot to be amputated.

Case Law
• Re C (Adult: Refusal of Treatment). • Decision made to allow him to keep his foot • The delusions were not affecting his ability to weigh up the information

Mental Capacity Act 2005
• Acts in connection with care or treatment
– Care can be provided without incurring liability for acts that otherwise might result in a civil wrong or crime

Restraint
• Two Conditions
– Reasonable belief that it is necessary to act to prevent harm – The act is a proportionate response

Lack of Capacity
• • • • • Best interest Powers of Attorney Common Law Advance directives IMCA

Best Interests
– – – – Relates to everything done on patients behalf Patients wishes must be considered Least restrictive option Consult relatives/carers…

Advance directives (anticipatory refusals)
• Legally binding if
– The patient was a competent adult when directive was made – Based on sufficient accurate information – The circumstances that have arisen are those the patient envisaged – The patient was not subject to undue influence in making the decision – (competence presumed)

Advance directives
An AD will not be applicable to life-sustaining treatment unless: • There is a written statement by P to the effect that the AD is to apply to the treatment even if life is at risk • The AD and statement are signed by P, or by another in P’s presence • The signature is made in the presence of a witness

Important Changes
• Lasting Power of Attorney/Court Appointed Deputies
– Also will be able to make health and welfare decisions

Common Cases
• Patient refusing treatment following an overdose • Need to assess capacity
– Mental state – Medication and alcohol

Mental Health Act
• Concerned solely with treatment for mental disorder • It is not possible to use it for surgical or medical procedures unrelated to the mental disorder

Cases
• Refusing Investigation/treatment
– 75 year old man with persistent diarrhoea and weight loss refuses investigations – 80 year old lady consents to surgery to alleviate symptoms related to a brain tumour – 70 year old man insisting he can manage at home despite falls risk because of amputated leg and dementia

Cases
• Managing finances
– Power of Attorney/Court of Protection

• Can a patient with dementia make an Enduring Power of Attorney?
– Simple test

• Can the same patient manage their finances?
– Complex!

Common Cases
• Patient with dementia wanting to go home • Need to assess risks first
– – – – Occupational therapy Physiotherapy History of other risks Compliance with care package

• Can risk be managed

Capacity
• May not be an issue
– Right of support for own decisions

Summary
• Consent
– Informed – Competent – Not coerced

• Capacity
– – – – Retained Believed Understood Weighed up

• Two stage test

Summary
• If in any doubt seek advice http://www.bma.org.uk/ap.nsf/Content/mencapact05