Capacity and consent

Question 1

Define consent

Answer 1

Permission for something to happen or agreement to do something

Question 2

Define capacity

Answer 2

Is the ability to make a decision

Question 3

For someone to have capacity what must they be able to demonstrate ?

Answer 3

Understand and retain relevant information:

1. What the intervention is, its nature and purpose and why it is being proposed
2. Main benefits/risks/alternatives
3. Consequences of not receiving intervention

Use and weigh that information to make a decision

Communicate that decision

Question 4

Capacity should be assumed until proven otherwise - T or F?

Answer 4

True

Question 5

What should you do in an emergency situation when dealing with someone who has not been able to provide consent ?

Answer 5

Deal with the situation (treat them) and then deal with the legal paperwork later

Question 6

What is the purpose of the adults with incapacity act (2000) ?

Answer 6

Provides a framework for safeguarding the welfare and managing the finances of adults (people aged 16 or over) who lack capacity due to mental illness, learning disability or a related condition, or an inability to communicate.

Question 7

What are the principles of the adults with incapacity act 2000?

Answer 7

1) Intervention must benefit the adult
2) Such benefit cannot reasonably be achieved without the intervention
3) Take account of past and present wishes
4) Consult with other relevant persons
5) Encourage the adult to use residual capacity

Question 8

What are the 3 main aspects of the adults with incapacity act that we need to know about ?

Answer 8

1. Power of Attorney
2. Guardianship
3. Section 47 certificate of incapacity

Question 9

Describe when guardianship is required and how it is obtained, along with what the guiardian then looks after

Answer 9

• Guardianship is appointed by a court
• Often the guardian is a relative, friend or a carer
• Guardianship can be in terms of the adults welfare or financial
• For welfare the guardian can make decisions with regards to where a person lives, as well as about their personal and medical care.
• For Financial guardianship the guardian can make decisions for the adult in regards to the property, financial affairs or personal welfare of the adult.

This type of guardianship is used when someone did not appoint someone power of attorney when they had capacity

Question 10

Describe power of attorney - how it is appointed and what the appointed person is then able to do

Answer 10

A power of attorney is authority given by an individual with capacity to deal with the persons affairs - This could relate to financial/property matters and/ or personal welfare.

So basically think if you haven’t been able to appoint someone power of attorney before you loose capacity then guardianship and Section 47 certificate of incapacity is considered

Question 11

When would the adults with incapacity Section 47 certificate of incapacity be used ?

Answer 11

• Used to authorise treatment of a physical disorder (including neuro ones e.g. someone with dementia) in someone without capacity to consent to that treatment
• This is used for treatment when someone is not at an immediate threat of death (becuase if so would treat regardless then handle legal work)
• Mental health act applies specifically to psychiatric disorders
• You might have a welfare attorney or guardian with the power to give consent (or refuse consent) to your treatment. If so, the doctor should consult the attorney or guardian before treating you. If they refuse consent, the doctor can ask the Commission to appoint an independent doctor to give another opinion.

Question 12

Who does the adults with incapacity act 2000 apply to ?

Answer 12

People who are 16 or within 3 months of 16th birthday

Question 13

What is the main difference between the mental heath act and the adults with incapacity act ?

Answer 13

Mental health act only applies to treating mental disorders – if you want to treat a physical disorder and they are unable to consent you instead use the Adults With Incapacity Act section 47

Think physical e.g. a broken hip - they could have a mental disorder as the reason for their inability to give consent but you would be treating the physical disorder in this scenario not the mental disorder

Question 14

What does the mental health act 2003 allow for ?

Answer 14

Treatment of mental disorder or physical consequences of mental disorder (mental illness, learning disability or related condition) in someone without capacity to consent to treatment.

Question 15

What are the 5 different things which can be performed under the mental health act 2003 ?

Answer 15

1. Emergency detention certificate (sec 36)
2. Short term detention certificate (sec 44)
3. Compulsory treatment order
4. Advance statement
5. Nurses’ holding power

Question 16

What 5 criteria must be met in order to detain someone under the mental health act ?

Answer 16

1. Present significant risk to themselves or others (e.g. suicide, harm to others, extreme self-neglect)
2. Muat be likely that the patient has a mental disorder (mental illness, learning disability however acquired or personality disorder)
3. Impaired decision making ability – must be significantly impaired. Making consistent poor decisions due to their disorder.
4. Applying for a short-term detention would cause unecessary delay – e.g. need to section someone in a hospital as primary care attempts failed
5. Detention to hospital is urgent for treatment

Question 17

When can an emergency detention certificate be issued under the mental health act 2003 and what does it allow?

Who can issue an emergency detention certificate?

Answer 17

• Allows a person to be held in hospital for up to 72 hours while their condition is assessed with a view to deciding if you need medical treatment for your mental disorder.
• During that time, you should not be given treatment without your consent unless you are being treated under a different law (the Adults with Incapacity (Scotland) Act 2000), or you need treatment urgently, e.g. to save your life, or prevent a serious deterioration in your condition.

It can only take place when recommended by a doctor (FY2 and above). Where possible, a mental health officer should also agree to it.

Question 18

Who can issue a short-term detention certificate under the mental health act 2003 and what is allowed to be done when somene is detained under this ?

Answer 18

It can only take place if recommended by a psychiatrist and a mental health officer. Your named person should also be consulted.

Can be kept in hospital for up to 28days

You can be given treatment for your mental disorder in accordance with the rules set out in part 16 of the Act. You can be given some treatment, including medication, without your consent. However, your views and wishes about treatment should be taken into account, including where these are expressed in an advance statement.

Question 19

What is the purpose of a compulsory treatment order (CTO)?

Answer 19

Allows for a person to be treated for their mental illness, who does not have capacity

Question 20

How long can a CTO last and how do you put one in place?

Answer 20

Last up to 6 months

Your Mental Health Officer will make an application for a CTO to the Mental Health Tribunal. The application must be supported by two medical reports, an MHO report and a proposed care plan. You and your named person should be informed if an application for a CTO is to be made.

Question 21

Who makes up a mental health tribunal and when can patients apply to a tribunal to appeal a decision ?

Answer 21

• Tribunal consists of lawyer, psychiatrist (from diff. hospital), and lay person (retired nurse, carer, etc).
• Patient can appeal a CTO or short term in front of a tribunal
• Psychiatrist and MHO must present evidence to the panel that patient meets all the criteria of the mental health act

Question 22

What is the age of consent in scotland ?

Answer 22

• Above 16 assume has capacity to give consent
• Aged 12-16 is the grey-area determined by the physician if the person has capacity to give consent
• Aged<12 can never give consent

Question 23

What is the purpose of a designated medical practitioner in relation to the mental health act?

Answer 23

• This is a medical practitioner appointed by the Mental Welfare Commission under Section 233 of the Act.
• The function of a designated medical practitioner is to provide a second medical opinion with respect to certain medical treatments being given
• e.g. for a patient to be given ECT apart from 2 life-saving treatments a separate certificate from a designated medical practitioner must be provided