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Mental Health Law > Mental Capacity Act > Flashcards

Mental Capacity Act Flashcards

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1
Q

Lewisham

A

Woman with broken arm, senior house officer wants to put in a cannula and proposes to use her other arm. She says no because she has had a left mammectomy and axillary node clearance and putting in an intravenous meant a risk of oedema.

CoA “the duty to obtain the patients consent to treatment is a fundamental tenet of medical practice, inherent in case law concerning duty to take reasonable steps to warn patients of the risk of treatment so they can make an informed decision about whether to consent”
“Dr P was in breach of care by inserting the cannula without C’s consent.”

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2
Q

R v Hallstrom

A

“It goes without saying unless clear statutory authority to the contrary exists, no-one is to be detained in hospital or undergo medical treatment or even to submit herself to medical examination without his consent. That is as true of a mentally disordered person as of anyone else.”

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3
Q

Re T (Adult: Refusal of Medical Treatment)

A

This right “exists notwithstanding the reasons for making the choice are rational, or irrational, unknown or even non existent”

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4
Q

Heart of England NHS Foundation Trust v JB

A

“In the absence of consent, any invasion of the body will be a criminal assault. The fact that the intervention is well-meaning or therapeutic makes no difference”

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5
Q

Common law

A

Right to make own decisions with capacity

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6
Q

Basic approach (4)

A
  1. Is the persons care or treatment governed by MHA 1983?
  2. If not, do they have capacity to make their own decision about whether or not to accept C or T?
  3. If not, is there an advance decision, lasting power of attorney or court order about whether or not t or c can be given?
  4. If not, s5 of the MCA 2005 provides a defence to liability if its conditions are satisfied
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7
Q

Pre MCA 2005 criticisms

A
  • Common law lacked consistency
  • Individual autonomy not always respected
  • Sometimes written off because of diagnosis
  • No clear authority to act on behalf of those lacking
  • Limited options for those who wanted to plan ahead
  • No right for relatives and carers to be consulted
  • Enduring POA were seen as open to abuse
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8
Q

Re C

A

85% chance of death without amputation. Thorpe J ‘for the patient offered amputation to save life, 3 stages:

  1. Take in and retain information
  2. To believe it
  3. To weigh the information, balancing risk and need.

? whether it has been established c’s capacity is so reduced by chronic mental illness he does not sufficiently understand nature, purpose and effect of preferred amputation.

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9
Q

Duties of an IMCA (6)

A
  1. Support P and represent their views and interests to the decision maker
  2. Obtain and evaluate information by interviewing P and examining relevant records and documents
  3. Obtain the views of P’s professionals and paid workers
  4. Identify alternate course of action
  5. Seek a second medical opinion for serious medical treatment
  6. Prepare a report which the decision maker must consider
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10
Q

MUST consult an IMCA when the person is unbefriended, lacks capacity, and

A
  1. The NHS is proposing to provide serious medical treatment or
  2. NHS or local authority is proposing to arrange a significant change in P’s accommodation (28 days+ in hospital or 8 weeks+ in care home)
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11
Q

MAY wish to consult an IMCA to support someone lacking capacity to make decisions concerning

A
  1. Care reviews, where no-one else is available to be consulted
  2. Adult protection cases, whether or not family, friends or others are involved
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12
Q

CoP personal welfare decisions

A

Where P is to live, what contact P is to have with specified persons, giving or refusing consent to medical treatment, authorise and DoL

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13
Q

CoP property and affairs decisions

A

Control/manage/sell P’s property, discharge P’s debts and obligations, execute P’s will and conduct legal proceedings in P’s name, appoint deputies and remove them

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14
Q

Three ways to plan for incapacity (3)

A
  1. Lasting Powers of Attorney for property/financial affairs or personal welfare
    a) attorney/donee must make best interests decisions
    b) personal welfare introduced for the first time under MCA
  2. Advance decisions to refuse
    a) legally binding if valid and applicable
  3. Advance statements
    a) NOT legally binding but relevant to determining best interests
    b) far broader in scope than medical treatment
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15
Q

Lasting powers of attorney MCA section 9

A

Can appoint more than one person, anyone over 18 can set one up.

An LPA enables an adult donor to give a donee the legal authority to decide:

  1. P’s personal welfare when P no longer has capacity OR
  2. P’s property and affairs whilst P has capacity or when P lacks capacity
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16
Q

Lasting power of attorney not valid unless

A

Registered with a public guardian

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17
Q

MCA Advance Decisions plus what sections

A

Sections 24-26
An advance decision is made by an adult with capacity that if:
a) at a later time, a specified treatment is proposed to be carried out by a person providing health care, and

b) at that time, he lacks capacity to consent to that treatment

The specified treatment is not to be carried out or continued

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18
Q

For refusal of life sustaining treatment what must the decision be?

A

in writing, signed, witnessed and realise life is at risk BUT does not need to be registered
ONLY RELATES TO HEALTHCARE NOT SOCIAL CARE

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19
Q

A Local Authority v E and others

A

32 year old woman suffered from anorexia, emotionally unstable borderline personality disorder, alcohol and opiate dependency, not eaten solid food for one year and not taken calories for two months.
Detained under MHA 1983 on around 10 occasions in 6 years. Tried twice to make an advance decision to end life. Care team and parents unanimously decided all treatment options were exhausted, best interests to die in comfort.

Starting point is to assume capacity! As capacity was never established judge decided best interests which involved her being forced treatment for 12 months with a 10-20% chance of survival.

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20
Q

A PUB L Principles - MCA section 1 and Code of Practice chapter 2

A

1 Assumed to have capacity unless established lacking, Lewisham (no reason to doubt capacity regarding cannula)

  1. Not to be treated as unable unless all practicable steps to help attempted without success
  2. Not to be treated as unable to make decision merely because he makes an unwise one

^ Reflect UNCRPD convention. If still concerns, unable to empower…

  1. A decision under this act on behalf of someone lacking capacity must be done in his best interests
  2. Regard must be had to least restrictive alternative, substituted decision making
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21
Q

Mental Incapacity

A

MCA sections 2-3 and COP chapters 3-4

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22
Q

PC and NC v City of York Council

A
  1. Are they unable to make a decision for themselves in relation to the matter? Unable if unable to:
    - Understand information relevant, or
    - Retain that information, or
    - Use or weigh that information as part of the process of making decision, or
    - Communicate the decision
  2. Is this because of a temporary or permanent impairment or disturbance affecting the functioning of the mind or brain?
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23
Q

Functional test

A

All about providing autonomy, if someone is unable despite taking practicable steps to support them, if they cannot make one or more, must look at why.

Is there a causal link between the inability and some impairment or disturbance that affects the functioning?

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24
Q

CC v KK and STCC

A

82 year old with Parkinson’s, vascular dementia and paralysis. Did she have capacity to decide on residence and care?

The individual need only comprehend and weigh the salient details of the decision, avoids ‘protection imperative’

CoA not satisfied KK was given full details of all practicable support that may have been available.

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25
Q

Kings College NHS FT v C and V

A

Capacity to refuse renal dialysis after a suicide attempt. Trust accepted she was able to understand, retain information and communicate.

“Others may consider c’s decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity.”

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26
Q

Heart of England NHS FT v JB

A

Paranoid schizophrenia, physical health problems, surgeons wished to remove part of her leg.

“What is required is a broad, general understanding of the kind that is expected from the population at large. Not required to understand every last piece of information about their situation and options. Indecision, avoidance or vacillation are not to be confused with incapacity.”

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27
Q

MCA s1(5)

A

An act done, or decision made under this Act for or on behalf of a person who lacks capacity must be done, or made in his best interests.

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28
Q

MCA s5(1)

A

Does an act in connection with the care or treatment of another person

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29
Q

MCA s5(2)

A

D does not incur any liability in relation to the act that he would not have incurred if P

a) had had capacity to consent in relation to the matter or
b) had consented to the doing of the act

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30
Q

MCA s16

A

Make the decision or decisions on Ps behalf in relation to the matter or matters

31
Q

MCA section 5 defence to liability (4)

A
  1. Have you taken reasonable steps to establish whether P has capacity?
  2. Do you reasonably believe P lacks capacity on the balance of probabilities?
  3. Do you reasonably believe the act or decision is in P’s best interests?
  4. If restraint is used, was it BOTH necessary to prevent harm to P and a proportionate response to a) the likelihood of them suffering harm and b) the seriousness of it?
32
Q

MCA section 6

A

For these purposes, a person restrains another if he:

a) uses, or threatens to use, force to secure the doing of an act which P resists, or
b) restricts their liberty of movement, whether or not they resist

33
Q

When is restraint lawful under section 6?

A

If restraint is used, is it:

  1. Necessary to prevent harm to P? AND
  2. A proportionate response to (a) the likelihood of them suffering harm and (b) the seriousness of it?
34
Q

Commissioner of Police for the Metropolis v ZH and others

A

ZH suffered from autism and was epileptic, walked to the edge of a pool fully clothed and started jumping in it having fun.

Police restrained him with handcuffs, leg restraints, he lost control of his bowels and became extremely distressed crying.

They put him in a cage and didn’t allow his carer to comfort him.

This was unnecessary and disproportionate, threshold of article 3 was crossed.

35
Q

G and E v Manchester City Council and F

A

The vast majority of decisions about incapacitated adults are taken by carers and others without formal authority.

36
Q

Determining best interests MCA section 4 Code chapter 5 (6)

A

4(1) do not determine on basis of P’s age or appearance
4(3) must consider whether likely to regain capacity and when
4(4) ‘so far as reasonably practicable permit and encourage person to participate, or improve ability to participate as fully as possible’
4(5) where determination relates to life-sustaining treatment, decision regarding best interests must not be motivated by desire to bring about P’s death
4(6) a) past, present wishes and feelings
b) beliefs and values
c) other factors likely to consider
4(7) consult if appropriate a) anyone named by P b) anyone engaged in caring c) any LPA d) deputy

37
Q

James v Aintree

A

“The purpose of the best interests test is to consider matters from the patients point of view. Not to say his wishes must prevail any more than those of a fully capable patient must prevail. We cannot always have what we want.”

38
Q

A Local Authority v X

A

P frontal lobe damage, tetraplegic, bedsores led to sepsis and admitted to hospital.

Hospital treatment £156,000 and home package £468,000.

Local Authority required two carers at all times at home and unwilling to fund it. “He understands the high levels of care and if it is only available at home that is where he will remain.”

39
Q

N v ACCG / Liverpool Principle

A

Visiting parents every sunday, care providers refused. CoP: Judiciary cannot intervene on the merits in an area of concern entrusted by Parliament to another authority.

Supreme Court: “CoP had jurisdiction but this was “a case which the court did not have the power to order the CCG to fund what the parents wanted. Nor did it have power to order the care providers to do what they were unwilling.”

40
Q

Dorset County Council v EH

A

MCA is founded on the principle consent of incapacitated adults can be overridden in appropriate cases in their best interests when necessary and proportionate.

Autonomy is important but doesn’t trump welfare!

41
Q

MCA Code paragraphs 5.39-5.46

A

Patients vantage point

42
Q

Briggs v Briggs

A

2005 Act does not say p’s wishes are paramount nor does it lay down any express presumption in favour of implementing them if they can be ascertained, paramount objective is best wishes.

MCA requires a holistic and enabling approach.

43
Q

Wye Valley NHS Trust v Mr B

A

Chronic foot ulcer refusing antibiotics, lacked capacity to decide on amputation or not.

Best interests goes beyond medical interests. P’s wishes, feelings and beliefs are just as important.

Delusions of having a religious component (going to heaven) will not reduce weight due to Article 9. P must be permitted to participate as much as reasonably practicable under section 4.

Did not want intervention therefore not in best interests.

44
Q

FP v GM and a Local Health Board

A

Fundamentally emotional dimension, importance of relationships, sense of belonging in the place you’re living and a particular group.

Broad view of best interests as far as possible to do so. Consider life expectancy, people should be allowed to be with families rather than institutions.

45
Q

Winspear v Sunderland NHS Trust

A

Unless impracticable or inappropriate it is mandatory under MCA s4(7) to consult with those identified not just as to what they believe to be in P’s best interests but also as to P’s best wishes etc.

Failure to do so would breach art 8 as not being in accordance with legal procedure and no defence to liability under MCA s5.

46
Q

CRPD’s purpose (Art 1)

A

“to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”

47
Q

A paradigm shift from MCA to CRPD

A

Move from traditional medical to the social model of disability. Persons suffering are not viewed as objects of charity and treatment but subjects with rights who are capable of claiming them.

48
Q

Art 5(1) and Art 5(2)

A

“All persons are equal before under the law and are entitled without any discrimination to the equal protection and benefit of the law” and to
“prohibit all discrimination on the basis of disability”

49
Q

United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)
(5 measures of implementation)

A
  1. State obligations: UK to ‘promote, protect and ensure’ (art 1) by taking ‘all appropriate measures (art 4)
  2. Optional protocol: individual communications to, and inquiries by, the CRPD committee.
  3. Special rapporteur: monitors and reports back
  4. Self-reporting: by states
  5. Courtroom lawyers: AH v West London MHT
50
Q

Article 12(2) UNCRPD

A

“Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”

51
Q

CRPD committee

A

“Perceived or actual deficits in mental capacity must not be used as a justification for denying legal capacity”

If we prove a person lacks capacity mentally, they are also denied legal capacity. One example of our MCA not complying with CRPD!

52
Q

Article 12(3)

A

“Provide access by persons with disabilities to the support they may require in exercising their legal capacity”

53
Q

Our compliance with art 12(3)

A

MCA 1(3) practicable steps to support P to decide. LPA’s advance decisions to refuse medical treatment.

54
Q

Article 12(4)

A

“Respect for the rights, will and preferences of the person”

CRPD committee “will and preference” paradigm must replace ‘best interests’ to ensure persons with disabilities enjoy the right to legal capacity on an equal basis with others’.

55
Q

Article 16 (freedom from exploitation, violence and abuse)

A

Promote physical, cognitive and psychological recovery, rehabilitation and social reintegration of those with disabilities who become victims, including through provision of protection services.

56
Q

Essex Autonomy Project

A
  1. Delete diagnostic limb of mental incapacity and focus on individual ability to decide
  2. Create rebuttable presumption of p’s wishes to prevail unless good reason to go against this
57
Q

section 2(1) Mental Incapacity

A

“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.”

Essex autonomy suggest removing these words

58
Q

Essex autonomy three stages for testing unjustifiable indirect discrimination

A
  1. Does the practice serve a legitimate aim under the CRPD?
  2. Does the practice use an objective basis for its differential treatment?
  3. Is the use of that basis of differential treatment a reasonable means for achieving the specified aim?
59
Q

Martin, principal investigator Essex Autonomy Project

A

Justifies the areas where the UK is not fully compliant with the CRPD.
Proposes a clear hierarchy of the checklist items in section 4(6) PPWF, BV, OF and
Rebuttable presumption best interests is whatever course of action P prefers.

60
Q

Bartlett

A

In signing up to the CRPD we signed up to a paradigm shift, implementing that does not occur without a challenge to fundamental assumptions about how we have acted in the past.

61
Q

Bournewood

A

ECHR ruled informal admission of a complaint, adult patient lacking capacity constituted an aribitrary detention which violated art 5(1). Absence of effective legal procedures to review violated Art 5(4).

62
Q

DL v A local authority

A

“The decided authorities show that there can be no power of public intervention simply because an adult proposes to make a decision, or to tolerate a state if affairs, which most would consider neither wise nor sensible.”

63
Q

FP v GM

A

The Court had to strike the best interests balance “with as broad a view of those interests as it is possible to do”. GM was thought to have one or two years of life left to him and, where possible, people should be allowed “to spend their end time within the family rather than in an institution, even if there are shortcomings in terms of care which an institution could address”.

May never know if care setting was the right decision but would know if home setting was.

64
Q

AM-V v Finland

A

The ECtHR held that the interference with his Article 8 ECHR rights were justified and a proper balance had been struck between the respect for his dignity and self-determination and the need to protect him and safeguard his interests. The safeguards ensured that his rights, will and preferences were (merely) taken into account.

65
Q

Compare A Local Authority v E with Kerrie Wooltorton

A

26-years-old, borderline personality disorder and attempted suicide using antifreeze before accepting life-sustaining treatment. 3 days after advance decision, which would have fallen foul of MCA s.25, she swallowed antifreeze, called an ambulance and on the hospital ward, accepted pain relief but refused renal dialysis.

Assessed as having capacity, her decision was respected and she died.

Both E and Kerrie had made fatal decisions which their health professionals considered to be capacitous. Both had a history of being compulsorily detained and treated under the 1983 Act. But E’s case was referred to Court and her life was compulsorily saved; whilst in Kerrie’s case no legal proceedings were initiated and death resulted.

66
Q

Compare E and Wooltorton (both had mental disorders) with X Primary Care Trust v XB and YB

A

The Judge was asked to consider whether an advance decision made by XB on 2 November 2011 was valid. There he had stated that he wanted to have his ventilation removed in certain defined circumstances. He suffered from Motor Neurone Disease and communicated by moving his eyes. On a document downloaded from the internet, he made an advance decision to refuse life sustaining treatment in the event that his disease progressed to a stage where he was unable to communicate his needs or have control over decisions as to his care and management. The document was agreed by him, his wife, his GP and a mental capacity coordinator. The advance decision stated that it was valid until 2 May 2012, when it was to be reviewed. As he now lacked capacity to communicate, Theis J. had to decide whether the November decision was valid and applicable. She decided that he had capacity when he made it but had not consented to the time limit. As a result, it was legally binding and his advance refusal was upheld.

67
Q

s58A

A

For ECT advance decisions will stand against this unless

68
Q

s62

A

Immediately necessary to save life or prevent serious deterioration

69
Q

Re AS

A

Court prefers to appoint a family member or close friend, if is possible. This is because a relative or friend will already be familiar with P’s affairs, and wishes and methods of communication.

70
Q

London Borough of Havering v LD

A

The practice of the Court to appoint personal welfare deputies only relatively rarely, in the most extreme cases, was the correct approach, considering the intention of s16(4) of the 2005 Act.

71
Q

Hedley J MK v JK referring to G v E

A

Article 8 of the Convention rights because I do think that putting in place a State-appointed decision­maker - which is what a Deputy is - is a considerable interference with family life and would therefore have to justify the twin requirements of legitimate aim and proportionality. One can never say never, but it is hard at the moment to envisage how in most cases a Personal WelfareDeputycouldever be so justified.”

72
Q

Coggon

A

Examines medical decision-making, arguing that the law, properly understood, requires where possible that equal weight be given to the wishes, feelings, beliefs, and values of patients who have, and patients who are deemed to lack, decision-making capacity.

73
Q

Donnelly

A
  1. Inclusion of a stronger statement of the primary importance of the individual’s wishes and feelings and by the inclusion of enhanced support requirements and that the terminology of best interests should be replaced by a terminology of rights.
  2. However, it also argues that a substitute decision-making framework, openly recognised as such, should continue to operate alongside a supported decision-making framework and that such a framework should allow account to be taken of factors beyond will and preferences albeit in a restricted number of situations.

Mental Health Law (4 decks)

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