Capacity and Consent Jan 08

8/14/2019 Capacity and Consent Jan 08

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CAPACITY AND CONSENT

M D Noble

January 2008

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


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Aims

Capacity Act (7/4/05)

Introduction to the basic concepts

Look at a few examples


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Objectives

Principles of

Consent

Capacity

Basic skills to assess capacity

Considerations when capacity lacking

To begin to develop appropriate attitudes re

patient autonomy


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Consent

Informed

Appropriate level of information

Competent

Capacity

Not coerced


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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Can be withdrawn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)


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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 medicaltreatment terminates if and when the child

achieves sufficient understanding and

intelligence to enable him to understandfully what is proposed."


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Capacity

Medical treatment

Financial affairs

Wills

Contracts

Discharge home etc Research


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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


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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


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Capacity

Two stage test

1) Is there an impairment of, or disturbance in

the functioning of the persons mind or brain?2) Has it made the person unable to make a

particular decision/is it relevant to this issue?

(Degree of proof)


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Capacity(1)

History

Is it likely to fluctuate?

Mental state Examination

General evidence e.g. of STM


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Capacity(2)

Understand the information

Retain that information

Use or weigh it up

Communicate decision


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Capacity

Understanding

Relevant information

Assist the process

Nature of the decision

Purpose

Consequences of either choiceHow do we test understanding?


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Capacity

Retaining

Poor Short Term Memory is not automatic

disqualificationInformation need only be retained for a short

period

Specific to the issueShould be assisted e.g. tapes, video


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Capacity

Weighing up

Complex process

Mental state examination

Believing it


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Capacity

Weighing up

Cant use the information

Anxiety disturbing thinking

Psychosis- delusions relevant to the decision

Anorexia belief in body image


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Capacity

Communicate decision

Include simple movements


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Case Law

MB (Medical Treatment)

Refusal to have a Caesarian section because

of a phobia of needles


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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


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Case Law

C (Adult: Refusal of Treatment).

A patient diagnosed as a chronic, paranoidschizophrenic refusing to allow his gangrenous

foot to be amputated.


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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


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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 civilwrong or crime


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Lack of Capacity

Best interest

Powers of Attorney

Common Law

Advance directives

IMCA


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Best Interests

Relates to everything done on patients behalf

Patients wishes must be considered

Least restrictive optionConsult relatives/carers


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Advance directives (anticipatory

refusals) Legally binding if

The patient was a competent adult when

directive was madeBased on sufficient accurate information

The circumstances that have arisen are thosethe patient envisaged

The patient was not subject to undue influencein making the decision

(competence presumed)


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Advance directives

An AD will not be applicable to life-sustaining

treatment unless:

There is a written statement by P to the effect thatthe 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 Ps presence

The signature is made in the presence of a witness


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Important Changes

Lasting Power of Attorney/Court Appointed

Deputies

Also will be able to make health and welfaredecisions


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Mental Health Act

Concerned solely with treatment for mental

disorder

It is not possible to use it for surgical ormedical procedures unrelated to the mental

disorder


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Cases

Refusing Investigation/treatment

75 year old man with persistent diarrhoea and

weight loss refuses investigations80 year old lady consents to surgery to alleviate

symptoms related to a brain tumour

70 year old man insisting he can manage athome despite falls risk because of amputated

leg and dementia


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Cases

Managing financesPower of Attorney/Court of Protection

Can a patient with dementia make anEnduring Power of Attorney?Simple test

Can the same patient manage theirfinances?Complex!


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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


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Capacity

May not be an issue

Right of support for own decisions


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Summary

Consent

Informed

CompetentNot coerced

Capacity

Retained

Believed Understood

Weighed up

Two stage test


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Summary

If in any doubt seek advice

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

Capacity and Consent Jan 08

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