Legal aspects Flashcards
Types of consent
Implied
Verbal
Written
What is capacity?
Ability to make a decision - personal welfare, health and financial decisions
*time specific (e.g. may be intoxicated so unable to make decision but later back to normal)
and
*decision specific (different decisions eg may be able to consent to blood test but not to surgery)
What are the principles of the Mental Capacity Act 2005?
- Presumes capacity at all times
- A legal right to support individuals in making their own decisions
- A right to make unwise decisions (as capacity is determined by the way decisions are made not the decision itself)
- Anything done for/on behalf of the patient without capacity should be the least restrictive of their freedom of action and/or rights
- Must be done in their best interests
- Assessment should be time and decision-specific
- If in doubt get 2nd opinion/legal opinion/case conference/referral to courts
- People must be given all appropriate help to make their own decisions e.g. interpreters
How is capacity assessed?
Two stage capacity tests:
- Is there an impairment of or disturbance in the functioning of the persons mind?
- Has it made the person unable to make a particular decision
Four part capacity test (to have capacity they need to be able to):
- Understand the information – assessor needs to decide how much information is essential to make decision (time and issue specific)
- Retain the information long enough to make the relevant decision
- Weigh up the information as part of the decision-making process
- Communicate the decision whether by talking, using sign language or any other means
What is the meaning of best interests?
all relevant circumstances must be considered, the patient should participate even if they lack capacity, if they will regain capacity it may be appropriate to wait, decision-maker must ascertain and consider the patient’s past and present wishes, must take into account if practical & appropriate the views of ADs (anticipatory refusals) and LPA
What is lasting power of attorney?
allows someone else to legally make healthcare decisions for another, must be made at a time when the person had capacity. Must be made on the prescribed form and registered with the Public Guardian, enables a mentally capable person to plan for incapacity. Can extend to property, welfare and healthcare matters. Decisions taken by the attorney are still subject to best interest’s requirements
What is DOLS?
Deprivation of Liberty Safeguards
-for patients in hospital/care homes who lack capacity, MDT assessment led by social workers, made to ensure these patients are looked after in a way that doesn’t inappropriately restrict their freedom. When a hospital/care home identifies such a person they must apply for an authorisation of DOLS
What is an IMCA?
Independent Mental Capacity Advocate
– appointed to support a person lacking capacity who has no one to speak on their behalf (no NOK or LPA), makes representations about peoples wishes, feelings, beliefs and values
What is the Mental Health Act?
Law in England + Wales to section people - admit to hospital, detain + treat without their consent.
either for their own or others’ health + safety
used when pt won’t be admitted voluntarily, or lack the capacity to consent
What are the criteria for implementing the MHA?
- Presence of a mental disorder as defined by law ‘any disorder or disability of the mind’ [includes mental illness, PD, LD, disorders of sexual preference e.g. paedophilia but not alcohol/drug dependence]
- No alternative
Section 2 of the MHA?
two doctors, at least one of whom should be section 12 (2) approved and one AMHP. Community or inpatient (anywhere except prison). Section for a maximum of 28 days for assessment (and treatment) of a mental disorder. Can appeal within the first 14 days and heard within 7 days by a tribunal, or appeal to hospital managers at any time.
Section 3 of the MHA
two doctors, at least one of whom should be section 12 (2) approved and one AMHP (not just social worker). Community or inpatient (anywhere except prison). Section for a maximum of 6 months for treatment of a mental disorder. Allowed one appeal to both hospital managers panel and tribunal, then a second appeal in second 6 months, then appeal each time renewed. Can be detained under this if they are well-known to MH services or following S2 admission. Detention can be renewed for a further 6 months, then renewed for further periods of one year at a time. Can be treated against their will for 3 months, after this they are seen by a second opinion appointed doctor if they lack capacity to consent/refuse treatment to see if they think treatment is needed
Outline the emergency sections of the MHA
all last for up to 72 hours except 5 (4) which is 6 hours
- Section 4 – emergency when S2 would involve unacceptable delay, often changed to a section 2 upon arrival at hospital, can be done by one doctor with an AMHP or nearest relative, no right to appeal
- Section 5 (2) – RMO/nominated deputy (approved clinician) can detain an inpatient on any ward except A&E for up to 72 hours under MHA, no appeal, legal form for hospital managers. Purpose is to allow formal MHA to be completed. No right to appeal
- Section 5 (4) – power to registered mental health nurses to detain an inpatient already receiving treatment for a mental disorder in hospital for up to 6 hours for medical assessment where mental illness is suspected, forms to be completed (pink paper) and submitted to hospital managers. No right to appeal
- Section 135 – allows a police officer/authorised person with magistrates warrant to enter person’s premises, who is suspected of suffering a mental disorder, and remove them to a place of safety
- Section 136 – police power to remove to a place of safety from a public place for assessment by an AMHP and one doctor, held for up to 72 hours to allow assessment, police to stay with person, if needed second doctor attends for MHA assessment for Section 2 or 3
What is a community treatment order?
patient on S3 can be considered for a CTO. They are well enough to leave hospital but may default from treatment/follow up. Treatment is necessary for patient’s health, safety or protection of others. Patient can be recalled to hospital if they don’t comply with treatment, attend appointments etc., may be detained for up to 72 hours for assessment. can still appeal this to the tribunal. Decision made by responsible clinical with agreement of AMHP
