Medicolegal/Ethics Flashcards
Deprivation of Liberty
Article 5 of the Human Rights Act = ‘everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty (unless) in accordance with a procedure prescribed by law.
There is likely a deprivation of liberty if:
● The person is subject to continuous supervision and control and
● The person is not free to leave
The Deprivation of Liberty Safeguards is the procedure in law used where it is necessary to deprive a patient or resident of their liberty as they lack capacity to consent to treatment or care to keep them safe from harm. The following conditions must be met to allow a person to be deprived of their liberty under the safeguards:
● The person must be 18 or over.
● The person must be suffering from a mental disorder.
● The person must be a patient in hospital or a resident in a care home.
● The person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment.
● The proposed restrictions would deprive the person of their liberty.
● The proposed restrictions would be in the person’s best interests.
● Whether the person should instead be considered for detention under the Mental Health Act.
● There is no valid advance decision to refuse treatment or support that would by overridden by any DoLS process.
Capacity
All patients are initially assumed to have capacity. Capacity is decision-specific
● Capacity can be impaired permanently, temporarily, or can fluctuate
● Patients deemed to have capacity are freely able to make decisions that the healthcare provider thinks unwise or dangerous
● To be deemed capacious:
- Understand the information given
- Retain that information
- Weigh up the information to make the decision
- Communicate their decision
Mental health capacity act
The Mental Capacity Act (MCA) 2005 is a piece of legislation that applies to 16-17 year olds and adults (those 18 years old and over) who lack capacity to make decisions about their care/treatment when that decision needs to be made. The MCA is designed to protect vulnerable individuals who lack this capacity, ensuring the decisions made in their care involve them as much as possible and are done in their best interests. The mental capacity act has five key principles:
1. Every adult is assumed to have capacity unless proved otherwise
2. A person must be given all practicable help to make their own decisions before they are deemed to lack capacity
3. Unwise, unsafe or dangerous decisions does not mean that person does not have capacity.
4. All treatment given to a person who lacks capacity must be in the patients best interests
5. Anything done for a person who lacks capacity must be done in the least restrictive way possible
Power of attorney
This is a legal document drawn up by a competent adult that nominates another person to make decisions on their behalf. This can be related to financial and property, or health and welfare. It can only be used when that adult has lost capacity.
Advanced directives/decisions
An Advanced Decision, short for Advanced Decision to Refuse Treatment, is a legally binding document. Its purpose is to ensure that an individual can refuse a specific treatment(s) that they do not want to have in the future.
Treatments that can be refused include life-sustaining treatments. It cannot refuse basic care (such as washing), food or drink by mouth, measures designed purely for comfort (e.g. painkillers), or treatment for a mental health condition if the individual is sectioned under the Mental Health Act. It can also not demand specific treatment or something that is illegal (e.g. assisted dying).
Advanced Statements
An Advance Statement is not by itself legally binding, but legally must be taken into consideration when making a “best interests” decision on someone’s behalf under the Mental Capacity Act (MCA), 2005. This is because one of the criteria of the MCA is that a patient’s “wishes, feelings, beliefs and values” must be taken into consideration; an Advanced Statement provides evidence of this.
