Louise Wilson, Solicitor. Royal Assent – April 2005 Came into force April & October 2007 Many...
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Transcript of Louise Wilson, Solicitor. Royal Assent – April 2005 Came into force April & October 2007 Many...
Royal Assent – April 2005Came into force April & October
2007Many common law principles now
enshrined in statuteCourt of ProtectionRegulations Code of Practice
CapacityTreatment/welfare decisions IMCASLPAs and Court of ProtectionAdvance Decisions to Refuse
TreatmentResearch Offences/ProtectionChildren & Young Persons Deprivation of Liberty Safeguards
(DoLS)
MCA does not apply generally to under 16s
However, the offence of ill-treatment and neglect can apply to under 16s
Principles apply to 16 & 17 year oldsParental consent/best interests – 16
& 17 year oldsGillick competence
1. A person must be assumed to have capacity unless it is established that he lacks capacity;
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success;
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests;
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Who can/should assess capacity?Need for formal assessment –
Legal mattersGrave decisions Dispute Risk of harm
Highest level of functioning Balance of probabilities Confidentiality
Stage 1 – Diagnostic Is there an impairment/disturbance
in functioning of the mind/brain?
Stage 2 – Functional Is the impairment/disturbance
sufficient to render person incapable of making that particular decision?
Note – capacity is time and issue specific Unable to make a decision if:
Cannot understand the information relevant to the decision; or
Cannot retain that information; or Cannot use or weigh that information as part
of the process of making the decision; or Cannot communicate his decision (whether by
talking, using sign language or any other means)
Principle of equal consideration and non-discrimination best interests not to be determined merely by
reference to age, appearance or condition/unjustified assumptions
All relevant circumstances of which decision maker aware & it would be
reasonable to regard as relevant
Regaining capacity if this is likely, could decision be delayed?
Permitting and encouraging participation views still relevant where a person lacks capacity
Life sustaining treatment must be no motivation to bring about persons death starting point is best interests for life to continue
Persons wishes, feelings, beliefs and values past and present (e.g. any relevant written
statement) beliefs and values likely to influence that person if
they had capacity
View of others statutory right of carers, family & others to be
consulted Attorney/Deputy Only if “practicable and appropriate”
Duty on NHS body or LA to instruct an IMCA if serious medical treatment or provision of accommodation and no person appropriate to consult in determining best interests (other than engaged in providing care or treatment in a professional capacity or for remuneration)
Not required if Attorney or Deputy already involved
Does not apply to treatment under MHA 1983
Serious medical treatment – involves providing, withdrawing or withholding treatment in circumstances where:
a) Single treatment – fine balance between benefits, burdens and risks to patient;
b) Choice of treatments – finely balanced; or
c) What is proposed is likely to involve serious consequences for the patient
Can still provide treatment in an emergency
Must take into account any information given or submissions made by an IMCA but decision rests with health professional (IMCA will usually prepare a report for consideration)
Safeguarding issues
May interview person in private May examine and take copies of a health
record, social services record or care home records, if relevant to their investigation
May obtain further medical opinion Consult with:
Professionals providing care/treatment Other persons in a position to comment
Provide support so person may participate in decision, obtain relevant information, ascertain what likely to be wishes/feelings of person and alternative courses of action
The Court of Protection has wide ranging powers:
To make declarationsMake decisions and appoint Deputies In relation to LPAsTo remove Deputies or Attorneys
who act improperly
Should always apply to Court: Withholding or withdrawal of artificial
nutrition and hydration for PVS patients Organ or bone marrow donation
involving a person lacking capacity Non therapeutic sterilisation Some termination of pregnancy cases Other cases where there is doubt or
dispute about best interests
Life-sustaining treatment:
Must be in writing Must be signed by person (or in their
presence if they are unable to do so themselves)
Must be witnessed Must include a statement that it is to
apply even if life is at risk
Must specify the treatment that is to be refused (general desire stated does not constitute an advance decision)
Must set circumstances in which refusal will apply
Will only apply once the person lacks capacity Where possible oral decisions should be recorded
in case notes Need to consider if meet validity and applicability
requirements Can treat in an urgent situation if validity unclear
and matter is being referred to the Court
Ensure MCA principles are followed – protection for the patient and for professionals
Do not make presumptions of best interests Documentation is crucial Cannot be forced to provide medical
treatment which is not felt to be in a patient’s best interests. Ensure follow GMC guidance
Seek legal advice if in doubt about a decision