Capacity & Consent

Question 1

Human Rights Act 1998 Article 2

Answer 1

protection of the right to life

Question 2

Human Rights Act 1998 Article 3

Answer 2

prohibition of torture and inhuman or degrading treatment or punishment

Question 3

Human Rights Act 1998 Article 5

Answer 3

the right to liberty and security

Question 4

Human Rights Act 1998 Article 8

Answer 4

the right to respect for private and family life

Question 5

Human Rights Act 1998 Article 9

Answer 5

freedom of thought, conscience and religion

Question 6

Human Rights Act 1998 Article 12

Answer 6

the right to marry and found a family

Question 7

Human Rights Act 1998 Article 14

Answer 7

prohibition of discrimination in the enjoyment of Convention rights

Question 8

The Mental Capacity Act 2005

Answer 8

statutory framework for making treatment decisions for people who lack the capacity to make such decisions themselves

Question 9

IMCA-independent mental capacity advocate

Answer 9

IMCA can make decisions in serious medical treatment decisions when a person who lacks the capacity to make a decision and has no one who can speak for them, other than paid staff. NHS bodies have a duty within the MCA 2005 to appoint an IMCA.
Where a person lacks the capacity to make a decision for themselves, any decision must be made in that person’s best interests.

Question 10

assessment of a person’s capacity

Answer 10

MUST be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general.
and MUST contain the following;
• UNDERSTAND the information given to them that is relevant to the decision
• RETAIN that information long enough to be able to make the decision
• USE OR WEIGH UP the information as part of the decision-making process
• COMMUNICATE THEIR DECISION – this could be by talking or using sign language and includes simple muscle movements such as blinking an eye or squeezing a hand.

Question 11

The Mental Capacity Act also requires that all practical and appropriate steps are taken to enable a person to make the decision themselves. These steps include:

Answer 11

• PROVIDING RELEVANT INFORMATION (if there is a choice, has information been given on the alternatives)
• COMMUNICATING IN AN APPROPRIATE WAY (could the information be explained or presented in a way that is easier for the person to understand)
• MAKING THE PERSON FEEL AT EASE.
• SUPPORTING THE PERSON (can anyone else help or support the person to understand information and to make a choice)

Question 12

Once it has been determined that a person has the capacity to make a particular decision at a particular time, a further requirement (under the common law) for that consent to be valid is that……

Answer 12

it must be given VOLUNTARILY and FREELY, without pressure or undue influence being exerted upon them

Question 13

‘Bolam test’

Answer 13

a doctor would not be considered negligent if their practice conformed to that of a responsible body of medical opinion held by practitioners skilled in the field in question.

Question 14

SIDAWAY case (House of Lords 1985)

Answer 14

the legal standard to be used when deciding whether adequate information had been given to a patient should be the same as that used when judging whether a doctor had been negligent in their treatment or care of a patien ~BOLAM TEST~ however, SIDAWAY also stated that it was open to the courts to decide that information about a particular risk was so obviously necessary that it would be negligent not to provide it, even if a ‘responsible body’ of medical opinion would not have done so.

Question 15

MCA 2005 definition Capacity

Answer 15

the ability to make a decision

• task specific: may have the capability to make one decision but not another
• time specific: capacity may alter over time

Question 16

MCA 2005 definition lack of capacity;

Answer 16

If, at the time the decision needs to be made, patients are unable to make the decision because of an “impairment of, or a disturbance in the functioning of, the mind or brain”, they are deemed incapable.

Question 17

MCA 5 statutory principles

Answer 17

1. a person has capacity unless it has been established that they don’t.
2. a person is not treated as incapable of making a decision unless a practicable steps have been undertaken to help in doing so have been unsuccessful.
3. a person is not treated as incapable because the decision he/she has taken is unwise.
4. decision take or act performed on someone’s behalf must be in their best interest.
5. before the act is performed or the decision made, regard must be had as 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.

Question 18

how to assess Capacity;

Answer 18

consider;

1. understand the decision.
2. be capable of choosing and understanding why choice is needed.
3. have information about benefits, risks & alternatives.
4. understand and retain the information needed to make the choice.
5. be aware of how relevant it is to them.
6. know there is a right to consent or confuse.
7. know how to refuse.
8. be capable of communicating a choice.

Question 19

Best interest decisions:

Answer 19

1. decisions should not depend on age/appearance, a condition or aspect of behaviour.
2. consider whether the patients capacity may improve in order to make their own decision.
3. help the patient to be as incolved as much in their decision making.
4. never be motivated by a desire to bring about someones death.
5. consider past/present wishes, beliefs, values.
6. take into account wherever practicable the views of;
   - anyone named to be consulted
   - carers/persons interested in patients welfare.
   - appointed Attorney; LPA, enduring Power of Attorney
   - Deputy appointed by Court of Protection
   - IMCA (Independant Mental Capacity Advocate, if none of the above are available and the decision relates to major medical decision)

Question 20

Lasting Powers of Attorney

Answer 20

health care, medical treatment, financial and property

only valid if written, prescribed form, signed, registered

Question 21

2 circumstances where applying principles of best interest does NOT apply

Answer 21

1. involvement in research
2. advance directive (only valid if applicable to circumstances+made when the person had capacity, only valid to REFUSE treatment not demand it)