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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• Can be withdrawn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 • Capacity
– Informed – Retained
– Competent – Believed
– Not coerced – Understood
– Weighed up
• Two stage test
Summary
• If in any doubt seek advice

http://www.bma.org.uk/ap.nsf/Content/mencapact05

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