Capacity And Competence

Question 1

For consent to be valid

Answer 1

Informed
Voluntary
Capacitous

Question 2

Why can not everyone make decisions about their care

Answer 2

Lack capacity to do so
So cant give valid consent

Question 3

What is autonomy

Answer 3

It refers to the ability of an individual to choose how to live their life in accordance
with their own values and beliefs

Question 4

How does capacity relate to autonomy

Answer 4

Capacity is a pre-requisite for autonomy - losing capacity means losing the ability to decide in accordance with our own values

Anything that interferes with an individual’s ability to make decisions generally will diminish their capacity.

Question 5

How to be truly autonomous

Answer 5

must have a stable sense of self and our values -
autonomy is about a person’s whole identity

Question 6

What does having full autonomy mean

Answer 6

must be able to freely make the choices that will affect your life

Question 7

What is the idea of Society as a collection of autonomous individuals

Answer 7

There is another worldview linked to this idea
- The role of a society is to maximally endow its citizens with the ability to make autonomous decisions
This is a form of individualism

Question 8

What is the problem with the idea of society’s role “giving citizens the right o autonomous decisions”

Answer 8

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

Question 9

Capacity slide 9

Question 10

To have capacity a person must:

Answer 10

● Understand the presented information
● Retain the information
● Weigh up the decision
● Communicate that decision

Question 11

How to assist patients with capacity

Answer 11

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

Question 12

GMC guidance on judging the capacity of a patient

Answer 12

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.

Question 13

How does the presumption of capacity have limits

Answer 13

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

Question 14

Example case

Question 15

What is the 2 stage test

Answer 15

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?

Question 16

What is stage one?

Answer 16

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

‘temporary factors, such as confusion, shock, fatigue, pain or drugs, or panic induced by fear might erode or destroy capacity’.

Question 17

What is stage 2

Answer 17

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

Question 18

Can the patient understand the information

Answer 18

• What information is salient 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

Question 19

Can a patient retain the information

Answer 19

needs to be able to retain enough information for a sufficient amount of time in order to make a decision

‘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.’

Question 20

Can the patient weigh the information

Answer 20

‘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.’

It does not mean that, having related these arguments to each other, they reach a rational conclusion
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

Question 21

Can the patient communicate the decision

Answer 21

● reproduce the manner by which they usually communicate
● provide all necessary tools and aids
● enlist the support of any relevant carers or friends

Question 22

Why is capacity dynamic

Answer 22

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

Question 23

How is capacity independent of whether you agree as a doctor

Answer 23

Just because a person makes a decision that seems irrational to you, it does not
mean they do not have capacity to make it.

Question 24

Does a patient have the capacity to demand treatment

Answer 24

Capacity does not confer the right to demand treatment that a doctor does not think is medically indicated, or in the patient’s best interests

Question 25

What is the mental capacity act 2005

Answer 25

Applies to all those involved in the care of those who are over 16 and lack the capacity to make some or all decisions for themselves
Underpinned by five key principles :
1. Presumption of capacity
2. Support of individuals to make decisions
3. Unwise decisions
4. Best interests
5. Least restrictive option

Question 26

What key principles are important in the MCA

Answer 26

Best interests
Least restrictive option

Question 27

what do you do if your patient doesn’t have capacity?

Answer 27

You are responsible for deciding what would be of overall benefit to your patient. In doing this you must:

a. consult with those close to the patient and other members of the healthcare team, take account of their views about what the patient would want, and aim to reach agreement with them

b. consider which option aligns most closely with the patient’s needs, preferences, values and priorities

c. consider which option would be the least restrictive of the patient’s future options.

Question 28

What questions do you ask when someone has lost capacity

Answer 28

1. Can the decision wait - make only be temporary loss of capacity
2. What would be best in general - gold standard treatments
3. What would be best for this specific patient - engage with values and priorities of patient. Are there any risks/ values patient has.
4. is there any information on patient - engage with family members/ carers. Any written statements.

Question 29

Yh

Question 30

Yh

Question 31

Why would the court of protection appoint deputies

Answer 31

To make decisions for patients with:
- longstanding lack of capacity
- not previously established a LPA

Question 32

What is advanced statement

Answer 32

Advanced Statement : any information which the patient feels is relevant to their future care, should they lose capacity to make decisions

Question 33

What are advanced decisions

Answer 33

Advanced Decision : refers only to the advanced decision to refuse certain treatment in specified circumstances

Advanced decisions are legally binding, as long as they meet certain criteria :
● In writing
● signed by the patient
● signed by a witness
They only cover the circumstances and treatments specified.

Question 34

Is there anyone else who has the right to decide?

Answer 34

Lasting Power of Attorney : two types - health and welfare/ property and financial affairs

Legal document, conveying power to make certain decisions to a named person whenever the donor has lost capacity
Next of kin does not have the right to make these decisions without a LPA. An LPA needs to be registered with the Office of the Public Guardian (OPG).
Anyone can be appointed as an attorney, as long as they have mental capacity themselves

Question 35

What is a Independent Mental Capacity Advocate?

Answer 35

Person put in place to make decisions for patient if they have lost capacity and have no family members or carers

● The person is aged 16 or over
● A decision needs to be made about either a long-term change in
accommodation or serious medical treatment
● The person lacks capacity to make that decision, and
● There is no one independent of services, such as a family member or friend,
who is “appropriate to consult”

Question 36

What is court of protection

Answer 36

A new court made to supervise the implementation of the mental capacity Act
● making decisions on whether someone has mental capacity
● handling best interests’ disputes
● ruling on questions about deprivation of liberty

The Court of Protection can appoint Deputies to make decisions
- longstanding lack of capacity
- not previously established a LPA

Question 37

Summary 1

Answer 37

Capacity can be considered as a prerequisite for autonomy
We should presume capacity, and do all possible to support patients making autonomous decisions
In the case where capacity has been lost, we should aim to honour the autonomous decision we feel the patient would have made
In seeking to make this decision, we weigh up their best interests, along with what we know about them, and what others know about them, to help make decisions
Where we cannot, we can use an IMCA, or apply to the Court of Protection for the creation of a Deputy

Question 38

What is competence

Answer 38

Competence refers to the ability of a child or young person to consent to treatment. It is often used interchangeably with ‘capacity’ (eg. in GMC guidance). However while you can talk about capacity or competence for someone under 16 in the UK, the term competence is not used in a legal context with adults (as they fall under the MCA)

Question 39

Difference btw the UK and USA definition of competence

Answer 39

In UK law, the term competence is used exclusively to denote whether or not a person under 16 years of age can make autonomous decisions about their health
In the USA, the term competence can refer to a long-term judgement that a patient lacks capacity, taken by a court

Question 40

Gillick v West Norfolk & Wisbeck Area Health Authority [1986]

Question 41

What is maturity

Answer 41

• takes account of the child’s experiences and the child’s ability to manage influences on their decision making such as information, peer pressure, family pressure, fear and misgivings.

Question 42

What is intelligence

Answer 42

• takes account of the child’s understanding, ability to weigh risk and benefit, consideration of longer term factors such as effect on family life and on such things as schooling.

Question 43

Areas of brain associated with developing competence

Answer 43

The area of the brain most associated with anticipating consequences and managing far-reaching decisions is the pre-frontal cortex
This is one of the slowest brain areas to mature during puberty, the process continuing until ~ age 25y
Adolescents have been shown in research to handle risk differently to adults, and to be particularly vulnerable to peer pressure

Question 44

Where did the Fraser guidelines stem from

Answer 44

The Gillock case case also led to the development of the Fraser guidelines by Lord Fraser.
These refer specifically to whether or not someone under 16 can be prescribed contraceptives without parental knowledge.
They are not related to broader competence.

Question 45

What are the requirements for the patient in the Fraser guidelines

Answer 45

● He/she has sufficient maturity and intelligence to understand the nature and implications of the proposed treatment
● He/she cannot be persuaded to tell her parents or to allow the doctor to tell them
● He/she is very likely to begin or continue having sexual intercourse with or without
contraceptive treatment
● His/her physical or mental health is likely to suffer unless he/she received the advice or
treatment
● The advice or treatment is in the young person’s best interests.

Question 46

What treatments can the Fraser guidelines be applied to

Answer 46

Originally applied to contraception - now also apply to treatment of STIs and TOP (since 2006)

Question 47

What is the validity of consent

Answer 47

This is still a consent process

Just because they are competent to give consent, does not mean all consent will be valid
It still needs to be informed, and voluntary
Children may be particularly vulnerable to coercion

Question 48

GMC guidelines if child isnt Gillick competent

Answer 48

GMC :
“If a child lacks the capacity to consent, you should ask for their parent’s consent. It is usually sufficient to have consent from one parent. If parents cannot agree and disputes cannot be resolved informally, you should seek legal advice about whether you should apply to the court.”

Question 49

Scope of parental responsibility 2015

Answer 49

Can the parents make this decision?
● 1. Is this a decision that a parent should reasonably be expected to make?
○ whether the child or young person lacks Gillick-competence/capacity?
○ what is considered normal practice in our society?
○ the type and invasiveness of the proposed intervention;
○ the age, maturity and understanding of the particular child/young person;
○ the extent to which the child/young person agrees/resists;
○ any relevant human rights’ decisions of the Court
● 2. Are there any factors that might undermine the validity of this particular person’s parental consent?
○ parent cannot make decision – e.g. incapacitated themselves;
○ parent unable to focus on the best interests of the child/young person;
○ significant distress of parent – i.e. to the extent that they’re overwhelmed;
○ disagreement between parents.

Question 50

How is competent refusal of treatment by a Child treated

Answer 50

Competent refusal of treatment that appears to be in their best interests is treated differently in law than competent consent

Question 51

What does the GMC say about parental refusal of treatment

Answer 51

GMC :
“Parents cannot override the competent consent of a young person to treatment that you consider is in their best interests. But you can rely on parental consent when a child lacks the capacity to consent.
In Scotland parents cannot authorise treatment a competent young person has refused. In England, Wales and Northern Ireland, the law on parents overriding young people’s competent refusal is complex.You should seek legal advice if you think treatment is in the best interests of a competent young person who refuses.”

Question 52

How to get legal consultancy of competent refusal of treatment

Answer 52

To get more detail, we have to go to the BMA
“In England, Wales and Northern Ireland, a competent refusal can be overruled by a court or by a person with parental responsibility.”
If the refusal is not in the best interest of the patient

Question 53

What case supports the legal action against the competent refusal of a child

Answer 53

Re:W 1991
Young person - 16
Deemed component
refusing expansion of current treatment regimen for anorexia nervosa and transfer to a specialist unit
She argued that if she had valid consent she should have valid refusal
The judge disagreed, ruling that the court had power to override the wishes of a competent young person and consent to the treatment.
The court had to balance between the expressed views and feelings of the child and the harm which the child was at risk of suffering.
- irreversible damage to cognitive development and reproductive maturation which could occur if W was not treated

Question 54

Definition of irrationality

Answer 54

‘A decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’

Question 55

What is patient autonomy weighed against

Answer 55

weighed against what is objectively best for them (beneficence) and the fair distribution of resources (justice)

Question 56

Why has the court never upheld the competent refusal of a minor to lifesaving treatment

Answer 56

Court leans on both the Human Rights Act (1998) (s2. right to life) and the Children’s Act 1989 (paramount duty to the welfare of the child)
This is to allow the child to reach adulthood, keeping the most options open

Question 57

Summary

Answer 57

A competent young person can consent to treatment Like capacity, each decision is independent
A young person who is not yet competent to make the decision in question can have consent given by someone with parental responsibility
A competent young person can also refuse treatment
- But it someone with parental responsibility gives consent, this would legally overrule it (as would a court ruling)
… however you would be wise to seek legal advice

Question 58

Parental overrule of refusal