Mental Capacity Act

Question 1

How is consent defined in healthcare?

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.

Question 2

Consent of a child under 16 is valid if what?

Answer 2

The child is Gillick Competent.

Question 3

What was the Gillick case which lead to the term Gillick competency?

Answer 3

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 parental consent.
This matter was litigated because an activist, Victoria Gillick, ran an active campaign against the policy.
Mrs Gillick, a mother of ten (five girls, five boys), sought a declaration that prescribing contraception was illegal because the doctor would commit an offence of encouraging sex with a minor and that it would be treated without consent as consent vested in the parent.

Question 4

Can a child up to the age of 18 refuse treatment?

Answer 4

Yes, if they are deemed Gillick competent.

Question 5

When can a child under the age of 18 have their opinion overridden?

Answer 5

May be overridden by parent or court if necessary in the child’s best interests.

Children (<18) subject to the jurisdiction of the Family Division of the High Court.

Question 6

What is risked when consent isn’t sought?

Answer 6

Liable in the tort of trespass to the person. Battery is a form of trespass to the person - an intentional tort.

Question 7

What does article 3 of the human rights act state?

Answer 7

No-one shall be subjected to torture or to inhuman and degrading treatment.

Question 8

What does article 8 of the human rights act state?

Answer 8

Everyone has the right to respect for his home, his privacy, and his family life.

Question 9

Which section of the Mental Capacity Act of 2005 allows for the treatment of unconscious or incapable patients in their best interests?

Answer 9

Section 5.

Question 10

Which section of the Mental Capacity Act of 2005 outlines the process for determining a patient’s best interests?

Answer 10

Section 4.

Question 11

Define patients best interests.

Answer 11

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

Question 12

For the purpose of the Mental Capacity Act of 2005, what is the definition for lacking capacity?

Answer 12

“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 13

Before the introduction of the Mental Capacity Act of 2005, was it possible for an adult to consent for another who didn’t have capacity?

Answer 13

No.

Question 14

For consent to be valid, what standards must it/the patient live up to?

Answer 14

Firstly comprehend and retain the treatment information,
Secondly, believe it, and
Thirdly weigh the information in the balance to arrive at a choice.
They must be able to communicate their choice.

Question 15

What are the two provisions included in the Mental Capacity act of 2005 which allow those who may lose capacity, to direct future treatment?

Answer 15

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 16

Define Advanced Decisions.

Answer 16

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.

Question 17

The Mental Capacity Act of 2005 states that Advanced Decisions don’t need to be in writing unless what?

Answer 17

Unless the refusal of treatment relates to life-sustaining treatment.

Question 18

Before 1985, what was the only type of Powers of Attorney?

Answer 18

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.

Question 19

Where must any Lasting Powers of Attorney be registered before it can be used?

Answer 19

Any LPA must be registered with the Office of the Public Guardian before it can be used.

Question 20

What are Donees of Lasting Power of Attorney under the Mental Capacity Act?

Answer 20

Under Section 9 of the Mental Capacity Act, adults with capacity are able to nominate one or more treatment proxies (in relation to 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.