Capacity and Competence Flashcards
For consent to be valid, it needs to be:
- Informed
- Voluntary
- Capacitous
when can someone not give consent?
Not everyone will be able to make decisions about their care - they may lack
capacity to do so
This means they cannot give valid consent
what is autonomy?
self- legislation
the ability of an individual to choose how to live their life in accordance
with their own values and beliefs
why is autonomy important when it comes to capacity?
Capacity is a pre-requisite for autonomy - losing capacity means losing the ability
to decide in accordance with our own values
While capacity is prerequisite, that doesn’t mean it’s the only factor
Capacity is linked to the facility to reason according to our own beliefs and values.
To be truly autonomous, we must have a stable sense of self and our values -
autonomy is about a person’s whole identity
is having capacity enough to give full autonomy?
no
Material and social conditions often curtail people living as they would wish to do -
even when it comes to healthcare decisions
To have full autonomy, you must be able to freely make the choices that will
really affect your life
what is the role of society regarding autonomy?
The role of a society is to maximally endow its citizens with the ability to make autonomous decisions
This is a form of individualism
what could be a problem if everyone makes their own autonomous decision?
the problem is that the autonomous wishes of individuals often conflict
People may want things that are unfair, or detrimental to others
What we end up with is a battery of rights, which are constantly competing with those of others
what makes an autonomous decision?
Reason enabling autonomy
If the reason is absent / diminished, the decision is suspect - it is not truly
autonomous
what factor would diminish someones capacity?
Anything that interferes with an individual’s ability to make decisions generally will
diminish their capacity.
To have capacity, a patient must be able to :
- Understand the presented information
- Retain the information
- Weigh up the decision
- Communicate that decision
should you assume that someone doesn’t have capacity?
You should never assume that someone doesn’t have capacity.
Instead their capacity to make this particular decision should be assessed, with
the information presented in the most accessible way possible.
A patient may have capacity to make some decisions, and not others.
You should provide all possible help and support to enable them to make the
decision - eg. translators if needed, written information, time to consider, detailed
explanation
what does GMC guidance say about capacity?
You must start from the presumption that every adult patient has capacity
to make decisions about their treatment care.
You must not assume a patient lacks capacity to make a decision solely
because of their age, disability, appearance, behaviour, medical condition
(including mental illness), beliefs, their apparent inability to communicate,
or because they choose an option that you consider unwise.
does presuming someone of capacity have limits?
While we are told to presume capacity, this does not give medical professionals
freedom to ignore signs that a patient may not have capacity
If a patient’s decision-making seems erratic, or you know they have a condition
which could affect their ability to make decisions, an assessment of their capacity
to make this decision should be performed in the interests of protecting the
vulnerable
This is considered particularly important if the decision may be life-threatening
explain the Arskaya v Ukraine [2013] ECHR 1235 example case (fix this)
European Court of Human Rights
found a breach of the Article 2 ECHR (European Convention of Human Rights)
operational duty (right to life)
“despite S. showing symptoms of a mental disorder, the doctors took those
refusals at face value without putting in question S.’s capacity to take rational
decisions concerning his treatment. Notably, if S. had agreed to undergo the
treatment, the outcome might have been different.” (para 87).
what is the 2 stage test?
what are the 2 stages in the 2 stage test?
Stage 1. Is there an impairment of or disturbance in the functioning of a
person’s mind or brain? If so,
Stage 2. Is the impairment or disturbance sufficient that the person lacks the
capacity to make a particular decision?
describe stage 1 in the 2 stage test
Capacity is considered the dominion over decision-making
‘Disorders of mind or brain’ that can interfere with it include obvious things like
some mental health conditions, brain damage, strokes, learning difficulties
However they can also include factors from elsewhere in the body affecting brain
function - eg. pain, or overwhelming emotional states, in extreme situations
describe stage 2 in the 2 stage test
Is the impairment or disturbance sufficient that the person lacks the capacity
to make a particular decision?
- Understand the presented information
- Retain the information
- Weigh up the decision
- Communicate that decision
what do you need to consider when assessing a patients understanding of the information you give?
- What information is salient (matters to them) to the decision?
- How can it best be presented to be accessible?
- Don’t assume prior knowledge (eg. that they know what life in a care home
would be like) - Don’t set the bar too high:
- They don’t need to understand everything - just the salient information
- They need to understand well enough to make the decision
what do you need to consider when assessing whether a patient can retain the information?
needs to be able to retain enough information for a sufficient amount of time
in order to make a decision.
The MCA specifies at s.3(3) that ‘the fact that a person is able to retain the
information relevant to a decision for a short period only does not prevent him from
being regarded as able to make the decision.’
what do you need to consider when assessing whether or not a patient can weigh the information given?
‘the capacity actually to engage in the decision-making process itself and to be able to see the various parts of the argument and to relate the one to another.’ The PCT v P, AH & the Local Authority [2009]
It does not mean that, having related these arguments to each other, they reach a rational conclusion
Again, they only need to weigh salient information
It is easier to decide whether they are weighing the information appropriately if you
know more about their value system
they don’t have to come to a rational conclusion- as long as its their conclusion that they made autonomously
what do you need to consider when assessing a patients ability to communicate a decision?
Facilitate communication as far as you can:
- reproduce the manner by which they usually communicate
- provide all necessary tools and aids
- enlist the support of any relevant carers or friends
give an example that shows that capacity is dynamic
eg. a high-functioning individual can be temporarily rendered without capacity -
say acutely after a stroke, but symptoms may subsequently improve such that
they could again take an active part in decision-making
Capacity is the ability to make this particular decision, at the material time (bc capacity can change/ fluctuate)
do you have to agree with a patient for them to be considered having capacity?
Capacity is independent of whether you agree
Just because a person makes a decision that seems irrational to you, it does not
mean they do not have capacity to make it.
