Acute Care: Consent, MCA, DoLS Flashcards
GMC Consent Guidance
How should a Dr present different options?
Doctor explains options: potential benefits, risks, burdens and side effects of each, including the option to have no treatment. Doctor may recommend particular option which they believe to be best for pt, but they must not put pressure on pt to accept their advice.
Pt weighs up the potential benefits, risks and burdens of the various options as well as any non-clinical issues that are relevant to them. Pt decides whether to accept any of the options and, if so, which one. They also have the right to accept or refuse an option for a reason that may seem irrational to the doctor, or for no reason at all.
GMC Consent Guidance
If a patient asks for treatment doctor doesn’t think is of benefit?
If pt asks for a treatment that the doctor considers would not be of overall benefit to them, the DR should discuss the issues with the patient and explore the reasons for their request. If, after discussion, the doctor still considers that the treatment would not be of overall benefit to the patient, they do not have to provide the treatment. But they should explain their reasons to the patient, and explain any other options that are available, including the option to seek a second opinion.
GMC Consent Guidance
Sharing info with pts who lack capacity?
If pt not able to make decisions: doctor must work with those close to pt & other members of the healthcare team. Doctor must take into account any views or preferences expressed by pt & must follow the law on decision-making when pt lacks capacity.
Amount of info you share with pts will vary, depending on their circumstances. Tailor your approach according to:
- their needs, wishes & priorities
- their level of knowledge about & understanding of, their condition, prognosis and the Tx options (the nature of their condition, the complexity of the Tx, and the nature and level of risk associated with the Ix or Tx).
You should not make assumptions about: the information a patient might want or need, the clinical or other factors a patient might consider significant, or a patient’s level of knowledge or understanding of what is proposed.
GMC Consent Guidance
You must give patients the information they want or need about…
Diagnosis + prognosis, any uncertainties about diagnosis or prognosis, including options for further Ix, options for Tx or management, including option not to treat, the purpose of any proposed Ix or Tx & what it will involve, potential benefits, risks & burdens, likelihood of success, for each option
If available, should include whether benefits or risks are affected by which organisation or doctor is chosen to provide care, whether a proposed Ix or Tx is part of a research programme or is an innovative Tx designed specifically for their benefit, the people who will be mainly responsible for & involved in their care, what their roles are, and to what extent students may be involved, their right to refuse to take part in teaching or research, their right to seek a second opinion, any bills they will have to pay, any conflicts of interest that you, or your organisation, may have, any Tx that you believe have greater potential benefit for the patient than those you or your organisation can offer.
Explore these matters with pts, listen to their concerns, ask for and respect their views + encourage to ask questions. Check whether pts have understood the info & whether they would like more info before making a decision. Make it clear that they can change their mind about a decision at any time. You must answer patients’ questions honestly +(as far as practical) answer as fully as they wish.
GMC Consent Guidance
Reasons for NOT sharing information
No one else can make decision on behalf of adult who has capacity - if pt asks you to make decisions on their behalf (or wants to leave decisions to relative, partner, friend, carer etc), should explain that still important they understand the options open to them, and what the Tx will involve.
If they do not want this info, should try to find out why. If, after discussion, pt still does not want to know in detail about their condition or the Tx, should respect their wishes, as far as possible. But must still give them the info they need in order to give their consent to a proposed Ix or Tx, likely to include what it aims to achieve and what it will involve, e.g. whether procedure is invasive; level of pain or discomfort they might experience (+ what can be done to minimise it), anything should do to prepare for the Ix or Tx; and if involves any serious risks.
If pt insists they do not want even this basic info - explain potential consequences of not having it, particularly if might mean that consent is not valid. Record that pt has declined info + make it clear that they can change their mind + have more info at any time. DO NOT withhold info necessary for making decisions for any other reason (including when relative, partner, friend, carer asks you to, unless you believe that giving it would cause the pt serious harm. In this context ‘serious harm’ means more than that the pt might become upset or decide to refuse Tx. If withhold information from pt, record your reason for doing so in medical records, and be prepared to explain + justify your decision. Regularly review your decision + consider whether you could give info to the pt later, without causing them serious harm.
GMC Consent Guidance
How to share information?
How you discuss pt diagnosis, prognosis + Tx options often as important as the info itself. Share info in a way that the pt can understand and, whenever possible, in a place and at a time when they are best able to understand and retain it
Give info that the patient may find distressing in a considerate way
Involve other members of the healthcare team in discussions with pt, if appropriate
Give pt time to reflect, before and after they make a decision, especially if the information is complex or what you are proposing involves significant risks
Make sure the pt knows if there is a time limit on making their decision, and who they can contact in the healthcare team if they have any questions or concerns.
Give info to pt in a balanced way. If recommending particular Tx or course of action, explain reasons for doing so, but you must not put pressure on a patient to accept your advice. May need to support discussions with pts using written material, visual or other aids. Make sure the material is accurate and up to date. Check whether pt needs any additional support to understand information, to communicate their wishes, or to make a decision. Some barriers to understanding and communication may not be obvious; e.g. pt may have unspoken anxieties, or be affected by pain or other underlying problems. Make sure, wherever practical, that arrangements are made to give pt any necessary support. This might include, for example: using an advocate or interpreter; asking those close to the pt about their communication needs; or giving pt written or audio record of the discussion & any decisions that were made. You should accommodate pts wishes if they want another person, (relative, partner, friend, carer or advocate), to be involved in discussions or to help them make decisions. In these circumstances, you should follow the previous guidance.
GMC Consent Guidance
Responsibility for seeking consent
Discuss + agree with pt how decisions will be made about whether to make changes to the Ix or Tx plan. Establish if pt agrees to all or only parts of the proposed plan. If agree only to parts of it, make sure there is a clear process through which they can be involved in making decisions at a later stage.
Do not exceed scope of the authority given by a patient, except in an emergency. If emergency arises, follow the guidance in paragraph 79. If you are the DR undertaking Ix or providing Tx, your responsibility to discuss it with pt. If not practical, can delegate to someone else, provided you ensure the person you delegate to is suitably trained & qualified, has sufficient knowledge of the proposed Ix or Tx, and understands the risks involved, understands, and agrees to act in accordance with, the guidance in this booklet. If you delegate, you are still responsible for making sure that the pt has been given enough time and information to make an informed decision, and has given their consent, before you start any Ix or Tx.
Future events: discuss possibility of additional problems occurring in Ix or Tx where they might not be in position to make decision about how you proceed – if significant risk of particular problem arising – should ask in advance what pt would like you to do if it arises –also ask if there are any procedures they object to or would like more time to think about.
GMC Consent Guidance
Ensuring decision voluntary
May be put under pressure by employers, insurers, relatives or others to accept particular Ix or Tx – should be aware of this and of other situations in which patients may be vulnerable – such situations may be e.g. resident in care home, subject to mental health legislation, detained by police or immigration services, or in prison. Do your best to make sure such patients have considered options and reached own decision. If they have right to refuse Tx, should make sure they know this and are able to refuse it if they want to.
GMC Consent Guidance
Respecting pt decisions
Respecting a patient’s decisions: You must respect a patient’s decision to refuse an investigation or treatment, even if you think their decision is wrong or irrational.11 You should explain your concerns clearly to the patient and outline the possible consequences of their decision. You must not, however, put pressure on a patient to accept your advice. If you are unsure about the patient’s capacity to make a decision, you must follow the guidance in Part 3.
GMC Consent Guidance
Expressions of consent
In case of minor or routine Ix or Tx, if satisfied pt understand what you propose and why, usually enough to have oral or implied consent. If involves higher risk, important to get written consent – this is so that everyone involved understands what was explained + agreed. By law you must get written consent for certain Tx e.g. fertility treatment- must follow laws + codes of practice that governs these situations.
Written consent also needed for:
• Ix or Tx complex or significant risks
• Significant consequences for pts employment, social or personal life
• Providing clinical care not primary purpose of Ix or Tx
• Tx part of research programme or is innovative Tx designed specifically for their benefit
If not possible to get written consent, e.g. emergency or pt needs Tx to relieve serious pain or distress, can rely on oral consent, but must still give pt the information they want or need to make decision & record that they have given consent in their medical records.
Before starting Tx, check still wants to proceed and respond to any repeated or new concerns they raise, particularly important if: significant time since initial decision, material changes in pts condition or in any aspect of the proposed Ix/Tx. New information has become available e.g. about risks of treatment or about other Tx options.
Ensure kept informed about progress of Tx & able to make decisions at all stages, not just initial stage. If Tx ongoing, ensure arrangements in place to review or make new decisions.
What was the Montgomery judgement?
Shift from the ‘Bolam test’ to the ‘Test of Materiality’ when considering issues of consent (note: Bolam test still applies to other negligence cases, but not to consent issues).
What is the Test of Materiality?
Whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significant to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it
What is the Mental Capacity Act ?
MCA (2005) applies to everyone involved in care, treatment + support of people age ≥16 living in England + Wales who are unable to make some or all decisions for themselves.
Designed to protect + restore power to those vulnerable people who lack capacity. Also supports those who have capacity + choose to plan their future – everyone in the general population who is >18. All professionals (health & social care) have duty to comply with the Code of Practice – also provides support + guidance for less formal carers.
5 statutory principles underpin all acts carried out + decisions in relation to the Act. Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity (follow the 2-stage test).
The MCA is designed to empower those in health and social care to assess capacity themselves, rather than rely on expert testing – good professional training is key. If capacity is lacking, follow the checklist described in the code to work out the best interests of those concerned. Understanding and using the MCA supports practice e.g. applying DOLS.
Lack of capacity could be due to: stroke / brain injury, mental health problem, dementia, learning disability, confusion, drowsiness or unconsciousness (due to illness or its treatment), substance misuse.
What is Section 1 of the MCA (2005)?
Principles 1-3 support the process before or at the point of determining if someone lacks capacity. Once decided that capacity is lacking, use principles 4 and 5 to support the decision making process.
- A person must be assumed to have capacity unless it is established that he lacks capacity (note: cannot assume lack of capacity just because of particular condition or disability).
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (note: make every effort to encourage and support people to make decision themselves, if lack established, still important to involve person as far as possible in making decisions).
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision (note: right to make decisions others might regard as unwise or eccentric – values beliefs and preferences may not be the same as other people)
- 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
- 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. (note: someone making decision or acting on behalf of person lacking capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is need to decide or act at all – any intervention should be weighed up in the particular circumstances of the case).
What is Section 2 of the MCA (2005)?
Lack of capacity cannot be established merely by references age or appearance, or condition / aspect of his behaviour that might lead others to make unjustified assumptions about capacity.
What is Section 3 of the MCA (2005)?
Lack capacity in relation to a matter if at material time unable to make decision due to impairment of or disturbance in functioning of mind or brain (note: capacity is decision and time specific).
Unable to make decision for himself if he is unable to:
- Understand the info relevant to the decision (note: should not be considered unable to understand if able to understand if given in appropriate way for the circumstance e.g. simple language, visual aids, etc. Information relevant to decision includes info about reasonably foreseeable consequences of: deciding one way or another + failing to make the decision)
- Retain that information (if only able to retain for a short period, this does not prevent them from being able to make the decision)
- Use or weigh that information as part of the process of making the decision
- Communicate his decision (talking, sign language or any other means - note: every effort to find ways of communicating before deciding they lack capacity based solely on their inability to communicate – will need to involve family, friends, carers or other professionals)
Assessment should be based on balance of probabilities i.e. more likely they lack capacity then they don’t – record why come to this conclusion for the particular decision.
Two-stage assessment: 1) Does the patient have permanent or temporary impairment or disturbance of the mind or brain? 2) Might the impairment mean the patient is unable to make the decision?. If yes, proceed to 4 stage assessment (outlined above).
How can treatment lawfully be provided to adults who lack the capacity to consent?
- Where an adult has no one to make a decision on his or her behalf, treatment can be provided where it is both necessary and in the patients best interests – a ‘best interests’ decision
- Where the incapacitated adult has previously nominated someone to make the decision – a welfare attorney
- Where the Court of Protection has appointed a deputy to make the decision
- Under mental health legislation
What is an IMCA?
Independent Mental Capacity Advocate
Statutory advocacy introduced by MCA (2005). This gives some people who lack capacity right to receive support from an IMCA. IMCA services provided by organisation independent from the NHS and Local Authorities.
Note: IMCA advocacy is NOT best interest advocacy as the advocate does not offer their own opinion or make the decision.
IMCA has right to interview patient in private, and have access to their healthcare records.
When MUST an IMCA be appointed?
Person aged >16 who lacks capacity, who has nobody who can be consulted about their best interests, and decision is about:
- Serious medical treatment (note: for serious medical treatment, NHS staff proposing to take action will usually be the people instructing the IMCA).
- Long-term NHS accommodation (hospital >28 days or care home >8 weeks)
- Long-term local authority accommodation (period >8 weeks).
NB: In emergency, when urgent Tx (e.g. to save life) is needed, no legal obligation to instruct an IMCA. An IMCA cannot be involved if proposed Tx (despite being ‘serious’) is authorised under the MHA (1983).
When MAY an IMCA be appointed (but no legal duty to do so)?
- Adult protection cases (alleged victim of abuse / neglect or abuser themselves) – may be appointed even if they have friends / family involved / interested in care.
- Care reviews: i.e. in accommodation >12 weeks and having it reviewed
- No family or friends to represent them, but does have attorney or deputy appointed solely to deal with property and affairs – the Code states should not be denied access to IMCA if lacking capacity for decisions e.g. for serious medical Tx.
What are situations where an IMCA does NOT need to be intrsucted?
Person who now lacks capacity has nominated someone to be specifically consulted on the issue, a person has a personal welfare Attorney who is authorised specifically to make decisions on same issue, or personal welfare deputy has been appointed by the Court with powers to make decisions on the same issue.
What is non-instructed advocacy?
Wwhen advocate may need to represent another person’s interests + they are unable to communicate their views. Majority accessing IMCA service have LDs, dementia, acquired brain injury or mental health problems, but IMCAs also act if temporary lack of capacity (un/barely conscious, anaesthesia etc).
Many have significant communication barriers + are unable to instruct advocate themselves, and many unable to express a view about proposed decision. Non-instructed advocate always attempts to get to know person’s preferred communication method & spends time finding out if person is able to express view / how they communicate. IMCAs are experienced in working with those with communication difficulties & have good knowledge of the MCA so can assist practitioners in decision making. The non-instructed advocate: upholds persons rights, ensures fair & equal treatment & access to services, and makes certain that decisions made with due consideration for their unique preferences & perspectives:
- Client does not instruct advocate
- Advocacy is independent and objective
- People who experience difficulties in communication have a right to be represented in decisions that affect their lives
- The advocate protects the principles underpinning ordinary living which assumes that every person has a right to quality of life. (8 QoL principles)
What is Section 4 of the MCA?
Checklist for the ‘decision-maker’ (person who acts in best interest)
Must not make decision based purely on age or appearance, or condition / aspect of behaviour which might lead others to make unjustified assumptions
Consider whether it is likely person will at some time have capacity for the relevant decision, and if it appears likely that he will – when that is likely to be
Must permit + encourage person to participate or improve their ability to participate, as fully as possible in any act done for him and any decision affecting him.
If relates to life-sustaining treatment, must not be motivated by desire to bring about death
Must consider past + present wishes and feelings (particularly any written statement made by him when he had capacity), beliefs and values likely to influence decision if he had capacity, other factors he would be likely to consider if able to do so
If practical / appropriate to consult them, must take into account: anyone named by the person to be consulted for such matters, anyone engaged in caring for person or with interest in their welfare, anyone donee of a lasting power of attourney granted by the person, any deputy appointed for the person by a court.
Duties imposed by previous subsections also apply in relation to exercise of any powers which are exercisable under a LPA or exercisable by a person under this Act where he reasonably believes that another person lacks capacity.
If act / decision made by person other than the court: sufficient compliance with this section if he reasonably believes that his decision in best interest of the person.
What is Best Interests?
- General duty to act in patient’s best interest e.g. Good Medical Practice (GMC): ‘good clinical care must include… referring a patient to another practitioner, when this is in the patient’s best interest’.
- Legal duty: to act in patient’s best interest when they lack capacity
Note: if has capacity should always respect their ability to make decisions, and they MUST give consent for specific treatment / procedure. If patient does not have capacity: treating clinicians MUST give treatment they believe is in patient’s best interests.
