Consent, capacity and mental health

Question 1

Consent- Definition

Answer 1

• Consent is the voluntary and continuing permission of a patient to be given a particular treatment, based on a sufficient knowledge of the purpose, nature, likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it. Permission given under any unfair or undue pressure is not consent
• Consent of child under 16 valid if child ‘Gillick compent’
• Children 16-17 given same rights to consent as an adult under the family law reform act 1969

Question 2

Consent –Autonomy and paternalism

Answer 2

• Autonomy- Self-determination
  
  • The ability to evaluate and deliberate
  • The capacity to make decisions
  • The freedom to act
• Paternalism- Over-riding someone’s autonomy in their interest
  
  • Who judges interest
  • When is their sufficient reason for over-ride

Question 3

Consent- Legal Basis

Answer 3

• Trespass to the person
  
  • Assault- a person, threatens or attempts to injure another person physically and the injured party has a reasonable fear that the threat will be carried out
  • Battery- Goes beyond threat and the action is carried out
• Can be (extreme cases) a criminal offence, or a civil case under the law of tort. The tort of Negligence may be applied
• The battery could occur when a health professional touches a patient without consent
• Legally consent is required for any action where a patient is touched e.g. blood pressure measurement

Question 4

Three elements of consent

Answer 4

• Sufficient information is given (i.e. informed)
• The consent is voluntary
• The patient has the capacity to understand that information (they are competent in law)

Question 5

Explicit and implicit consent

Answer 5

• Written consent- often standard forms. Legally required for a few procedures
• Verbal consent- Explicit within limits. Must make clear verbally what you intend to do ‘I am going to take your blood pressure’
• just going to a doctor or hospital DOES NOT imply consent
• Implicit consent- No written forms, no explicit words
  
  • Based upon actions e.g. nod of the head, preparatory action (Rolling up a sleeve for BP measurement)

Question 6

Consent- case law (1)

Bolam

Answer 6

• In the 1957 case, a patient was advised to undergo treatment using electroconvulsive therapy (ECT). However, the practice was not without a small risk of fracture; a risk which did, in this case, materialize when the treatment resulted in the fracture of one of the patient’s hips. The patient had not been warned of this risk, nor were any relaxant drugs administered or any physical restraint used.
• In court,itbecameclearthatmedicalopinionvariedastowhetherECTpractitionerswould,asamatterofcourse,warnpatientsoftheriskoffracture.Additionally,practiceintheuseofrelaxantdrugsandphysicalrestraintsalsovaried.
• In his direction to the jury, McNair J clarified the standard of the test as being different from the “man on top of the Clapham omnibus” to be comparable to “acting by a practice accepted as proper by a reasonable body of medical men killed in that particular art

Question 7

Consent –case law (2)

Sideway 1

Answer 7

• Patient claimed that a doctor should have disclosed all the risks associated with a spinal cord operation to relieve a painful neck. Although the doctor had warned about the possibility of nerve root damage during the operation, the patient had not been warned about potential spinal cord damage, which occurred
• In this case, a majority of the judges opted for a Bolam approach, with Lord Bridge stating
  
  • the issue whether non-disclosure in a particular case should be condemned as a breach of the doctor’s duty of care is an issue to be decided primarily on the basis of expert medical evidence, applying the Bolam test

Question 8

Consent –case law (3)

Sideway 2

Answer 8

• Therefore, Sidaway considered Bolam and concluded that although the Bolam judgement means that information need not be disclosed if an accepted body of medical opinion would agree that the risks would not normally be disclosed, there are some risks where the consequences are so great that they must always be disclosed.
• Rejecting her claim for damages, the court held that consent did not require an elaborate explanation of remote side effects. In dissent, Lord Scarman said that the Bolam test should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed

Question 9

Consent –case law (4)

Answer 9

• In Birch v University College London Hospital NHS Foundation Trust, the central issue surrounded the absence of any information on alternative treatments and the associated risks, rather than the specific risks of the proposed treatment (as was the case in Sidaway).
• In Birch, the trial judge concluded that information on the alternative treatments, including their specific risks, should have been provided.
• The judge came to this conclusion despite the fact that a number of expert witnesses stated that it was the doctor’s responsibility only to warn of the risks associated with the proposed treatment

Question 10

What information is needed

Answer 10

• Patients need sufficient information before they can decide whether to give their consent
• Patient standard- disclose what an average “reasonable” patient with that condition would want to know
• Professional standard- set by health professional following accepted standards
• If a pateitns asks a doctor about risk, then the doctor is required to give an honest answer

Question 11

Voluntary consent

Answer 11

• Consent must be given voluntarily
• Therefore, not under any form of duress or undue influence form
  
  • HCP
  • Family or friends
• Consent can be withdrawn at any time
• A Court may decide whether there is undue influence

Question 12

Overriding consent

Answer 12

• 20-year old women injured in car accident when 34 weeks pregnant. Rushed to the hospital for emergency caesarean. Baby still-born. Then the patient develops an abscess on the lungs but refuses treatment on religious grounds supported by mother, devout Jehovah’s witness
• A Judgment that refusal was not free. Does the patient really mean what they say or is he saying it for a quiet life or to satisfy someone else or because the advice and persuasion to which he has been subjected is such that he can no longer think or decide for himself

Question 13

Capacity (Competency)

Answer 13

• Starting point is that a person has capacity
• Can the patient understand and retain the information provided
• Can the patient weigh that evidence
• Can the patient come to a conclusion based on the evidence
• Can the patient communicate a decision
• Special case for children

Question 14

Capacity- Mental Capacity act 2005

Answer 14

• For the purpose of this act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain

Question 15

Consent for patients without capacityu

Answer 15

• Before the introduction of the Mental Capacity Act, it was not possible for anyone to consent on behalf of an adult patient who lacked capacity. The presence of consent to treat is a key component of health care. Without consent, health care practitioners risk actions in both battery and assault.
• However, in order for the consent to be valid, it must meet certain criteria in that the patient must have the capacity to consent, they must understand the broad nature of the proposed course of action and the consent must be given voluntarily

Question 16

Adult refusal of treatment

Answer 16

• For consent to be valid, the patient must
  
  • Firstly comprehend and retain the treatment information
  • Secondly, believe it and
  • Thirdly weigh the information in the balance to arrive at a choice
• These three stages, along with a forth (the ability of the patient to communicate their treatment choice; not included in the ReC case judgement as the patient’s ability to communicate was not an issue) remain, and form sections 3(1) of the Mental Capacity Act as the test for a patient’s ability to make decisions
• The act is effectively providing a statutory basis for the common law previously developed in the area

Question 17

Mental capacity act 2005

Answer 17

• A person must be assumed to have capacity unless it is established that he lacks the capacity
• A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success
• A person is not to be treated as unable to make a decision merely because he makes an unwise decision

Question 18

Mental Capacity Act 2005 (2)

Answer 18

• An act is done, or decision made, under the 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 personal rights and freedom of action

Question 19

Best intrest

Answer 19

• Take into account a person’s past and present wishes and feelings, beliefs and values, which might be likely to influence a decision, and any other factors which (s)he would be likely to consider if able to do so

Question 20

F v West Berkshire Health Authority

Answer 20

Question 21

Life-sustaining treatment

Answer 21

• What falls under definition up to doctor or healthcare practitioner
• Anyone deciding on such treatment must have no motive for an individual’s death
• Must consider the patient’s best interests and any evidence of the patient’s views
• Withholding or removal of life-sustaining treatment must consider the patient’s best interest

Question 22

Consent by minors

Answer 22

• Young people aged 16 and 17 have the competence to give consent for themselves, but non-consent may be over-ridden
  
  • England and Wales the family law reform act 1969 & children act 1989 (Children Scotland act 1995 more explicit)
• Children U16 who understand fully what is involved in the proposed procedure can also give consent if judged competent (Although their parents will ideally be involved). Interacts with confidentiality
  
  • Known as Gillick competency
• In other cases, someone with parenteral responsibility must give consent of the child’s behalf

Question 23

Gillick competency (1)

Answer 23

• The Gillick case involved a health departmental circular advising doctors on the contraception of minors (for this purpose, individuals under the age of sixteen)
• The circular stated that the prescription of contraception was a matter for the doctor’s discretion and that they could be prescribed to individuals under the age of sixteen without parenteral consent

Question 24

Gillick competency (2)

Answer 24

• As a matter of law, the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed

Question 25

Refusal and children

Answer 25

• Refusal by a competent child of any age up to 18
• Maybe overridden by parent or court if necessary in the child’s best interest
• Children (<18) subject to the jurisdiction of the Family Division of the High Court

Question 26

Kerrie Wooltorton

Answer 26

Question 27

Absence of consent

Answer 27

• Liable in the tort of trespass to the person
• The battery is a form of trespass to the person- an intentional tort
  
  • Cull v Chance
    
    • Removal of the uterus without permission
  • Appleton v Garrett
    
    • Unnecessary dental treatment

Question 28

Human right act and consent

Answer 28

• Article 3 - No-one shall be subjected to torture or to inhuman and degrading treatment
• Article 8- Everyone has the right to respect for his home, his privacy and his family life

Question 29

Mental Capacity Act in Healthcare

Answer 29

• The act contains two provisions which are, on the face of it, in place to allow for individuals who may lose the capacity to direct future medical treatment
• Section 9 of the act introduces into law the concept of the donee of lasting power of attorney (or treatment proxy) for health and welfare
• Sections 24 to 26 of the act outline the provision of advance decisions

Question 30

Valid advance directive/Decision

Answer 30

• Advance directives- from the common law
• Advance decisions- Sections 24-26 of the mental capacity act
• The definition of an Advance Decision is covered in section 24 of the act and states that an adult if having capacity at the time of making the Advance Decision, may specify which treatment(s) should not be carried out or continued upon loss of capacity
• Furthermore, the act states that the advance decision need not be in writing unless the refusal of treatment relates to life-sustaining treatment

Question 31

Advance Decision

Answer 31

• There are clear differences between advance decisions (both oral and written) and a contemporaneous decision which is more often than not based on a discussion of the situation and two-way information flow
• The act states that any advance decision must be valid and applicable
  
  • So how easy is it to provide an applicable refusal of treatment while still competent when it may not be clear what treatment you would be offered should your condition deteriorate
  • Too specific a directive would only apply to certain treatments, leaving other treatment options to be used in the patient’s best interests. Conversely, to general, a directive would risk not applying to any situation

Question 32

Donees of lasting power of Attorney (1)

Answer 32

• Prior of 1985, the only types of powers of attorney which existed were termed ordinary powers of attorney and were governed by the Powers of Attorney Act 1971
  
  • This Act enabled individuals to delegate power over property and financial affairs but lapsed automatically if the donor lost capacity
• The Enduring Powers of Attorney Act 1985 added additional provisions with the introduction of enduring powers of attorney (EPAs) alongside the ordinary powers of attorney from the Powers of Attorney Act 1971
  
  • The key difference of EPAs when compared to ordianry powers of attorney was the EPAs did not automatically revoke upon loss of capacity of the donor

Question 33

Donees of Lasting Power of Attorney (2)

Answer 33

• Under section 9 of the mental capacity act, adults with capacity can nominate one or more treatment proxies (about healthcare; as previously discussed the act covers more than just healthcare treatment) to make decisions for the individual in the event of the loss of capacity
• This decision-making ability extends to decisions surrounding life-sustaining treatment so long as there is a clear statement to this effect within the documentation
• An LPA must be registered with the Office of the Public Guardian before it can be used

Question 34

Donees of Lasting Powers of Attorney (3)

Answer 34

• This is in some ways a more radical part of the Act than the one relating to Advance Decision as it could be argued that advanced directives were effectively already in place and supported by the common law
• The key change is that prior to the introduction of the Mental Capacity Act, no-one could consent (Or withhold consent) for medical treatment on behalf of another adult
• However, the donees’ powers are subject to the provisions of the best interests requirements in section 4 of the act; ultimately resulting in the donee having to act in what is perceived to be the patient’s best interests at the time

Question 35

The Mental Health act 1983 and 2007

Answer 35

• The mental health act 1983 is designed to protect the rights of people in England and Wales who are assessed as having a mental disorder
• The main purpose of this legislation is to ensure that people with serious mental disorders which threaten their health or safety or the safety of the public can be treated irrespective of their consent where it is necessary to prevent them from harming themselves or others

Question 36

The Mental Health Act 1983 to 2007

Answer 36

• The act is therefore largely concerned with the circumstances in which a person with a mental disorder can be detained for treatment for that disorder without his or her consent
• It also sets out the processes that must be followed and the safeguards for patients to ensure that they are not inappropriately detained or treated without their consent

Question 37

Mental Health Act 1983-2007

Answer 37

• The Act extends the approach towards informal and voluntary treatment whenever possible and incorporates the move to treatment in the community
• For some patients, however, compulsory admission and detention in a hospital are necessary either for their own safety or for the safety of others or both. For such cases the Act regulates
  
  • The process of admission to hospital
  • Various aspects of life for an individual once detained including access to treatment
  • Arrangements for discharge and aftercare

Question 38

Admission to hospital (1)

Answer 38

• For most admissions, to a psychiatric hospital, the patient has agreed to or requested that admission
• When a compulsion is required in an emergency, the person is admitted against their will using the powers of the Mental Health Act
• They may be admitted directly to hospital (Part II) or if the person has committed a crime resulting in their detention in prison or remand, transferred to hospital via the Criminal Justice System (Part III)

Question 39

Admission to hospital (2)

Length of admission

Answer 39

• When a person is admitted frm the community is such an emergency under the Act they will usually be detained for 72 hours
• If during those 72 hours it is thought likely that a longer admission is required in order to assess the situation, a further period of 28 days is made available by using section 2 of the act

Question 40

Admission to hospital (3)

Section 2 of the Mental Health Act 1983

Answer 40

• An application of admission for assessment may be made in respect of a patient because
  
  • A) he is suffering from mental disorder of nature or degree which warrants the detention (Or for assessment followed by medical treatment) for at least a limited period and;
  • B) He ought to be so detained in the interest of his health or safety or with a view to the protection of other persons

Question 41

Admission to hospital (4)

Answer 41

• Usually treatment is commenced during those 28 days and in many cases the person either recovers or if necessary, agrees to remain in hospital on an informal basis thereafter
• If however, that proves not to be the case, ther person can be detained for longer periods using section 3. At each of these stages various combinations of approved doctors, social workers or in some cases relatives, are involved in the certification process
• Detention under section 3 can be up to 6 months in the first instance

Question 42

Admission to the hospital (5)

Section 3 of the Mental Health Act 1983

Answer 42

• An application for admission for treatment may be made in respect of a patient on the grounds that
  
  • A) He is suffering from a mental disorder of nature or degree which makes it appropriate for him to receive medical treatment in a hospital
  • B) It is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section
  • C) Appropriate medical treatment is available for him

Question 43

Admission to hospital (6)
Release of hospital

Answer 43

• For most people, compulsory admission to hospital and subsequent treatment is followed by an insight into the nature of their illness, acceptance of further treatment and then their attendance as an informal patient
• In such cases, the authority of various sections of the Mental Health Act is allowed to lapse when the time expires

Question 44

Admission to the hospital (7)

Release from hospital

Answer 44

• Some people however, find detention in hospital is unacceptable. In such cases, the person can seek release by appeal to a Mental Health Tribunal
• The Tribunal usually comprises a lawyer, a doctor and a lay person
  
  • If the decision that the person no longer needs to be detained, they can order their discharge

Question 45

Admission to hospital (8)

Consent to treatment

Answer 45

• Sections 57-62 of the Mental Health Act 1983 provide the regulations necessary in order to achieve consent and lay down the circumstances under which treatment may take place
• It is important to note that electro-convulsive therapy (ECT) always requires consent or a second opinion under Section 58 and 58A of the Mental Health Act 1983
  
  • The number of treatments to be given must be stated on the certificate of consent