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Law Year 3 > Mental Capacity Act > Flashcards

Mental Capacity Act Flashcards

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1
Q

What is the 2 step process of determining capacity ?

A
  1. Does the person have an impairment, or a disturbance in the functioning, of their mind or brain?
  2. Is the impairment or disturbance sufficient to impair capacity to make a decision?
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2
Q

What are the 5 statutory principles of the MCA?

A

Capacity:

  1. Presume capacity unless there’s evidence they don’t have capacity
  2. Practicable support = give enough information as they require. This would also include access to an interpreter or hearing aid
  3. Unwise decisions - someone with capacity has the right to make unwise decisions

Lack of capacity:

  1. Best interests = if a person lacks capacity then the person making choice/decision on their behalf should do so in their best interests.
  2. Less restrictive
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3
Q

To give valid consent or permission the person needs to have: (this is a role of the healthcare professional)

A
  • Information to make an informed choice
  • Free choice to make this decision without being forced or pressured into it
  • The Mental Capacity to be able to consent or refuse
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4
Q

What is the independent mental capacity advocate?

A

An independent advocate who can look through the person’s records to work out their best interests. They represent the person when this person lacks capacity and has no one else to support them (family or friends).
They cannot make decisions on behalf of the person lacking capacity. They are like a surrogate next of kin.
The IMCA can challenge decisions which they believe not to be in the person’s best interests and appeal to a Court of Protection.

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5
Q

What are the legal requirement for finding capacity?

A 
Person needs to be able to:
Understand the information
Retain the information long enough to
Weigh up pros and cons of the treatment
Communicate their decisions (consent/refusal)
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6
Q

How do you determine best interests?

A 
Advanced directives
Looking at previously expressed wishes
Any other brackground that could be helpful in guessing what they would've wanted now
Family views
Medical best interests ofc
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7
Q

What is a lasting power of attorney?

A

LPA is something a mentally competent adult can create. The donee of the LPA (i.e. the person given the power) can make decisions on behalf the donor (the person giving the power) when and only when the donor loses capacity.

The LPA must specify the extent of the decision making the donee can make (i.e. financial, personal, welfare inc consent to treatment)

Power of refusing life-sustaining treatment must be specified in the LPA.

Decisions made by the donee will only be valid if they are in the donor’s best interests.

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8
Q

When is someone deprived of their liberty?

A
  1. When they’re on continuous monitoring/supervision

2. When they aren’t free to leave

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9
Q

When can someone be allowed to be deprived of their liberty?

A
  1. The proposed restrictions would be in the person’s best interests.
  2. Whether the person should instead be considered for detention under the Mental Health Act.
  3. There is no valid advance decision to refuse treatment or support that would be overridden by any DoLS (Deprivation of Liberty Safeguards) process.

All of these conditions need to be met to authorise to deprive someone of their liberty. The restrictions should be lifted as soon as they are no longer needed, not when authorisation stops.

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10
Q

What does a person need to be able to do to have capacity?

A
  1. Understand the information provided
  2. Retain the information
  3. Weigh up pros and cons
  4. Make a decision and communicate this decision back.
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11
Q

What are some examples of impairment/disturbance in functioning of the mind or brain that could impair capacity?

A 
Cognitive impairment
Dementia
Delirium (acute confusional state)
Some mental health conditions
Drug/alcohol intoxication or withdrawal
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12
Q

What do we need to explain so a person can make an informed decision?

A
  1. Why this treatment/procedure is happening
  2. What alternatives there are and what they entail
  3. Associated risks with this treatment/procedure
  4. What is likely to happen if the person refuses to undergo the treatment/procedure.
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13
Q

When must an IMCA be instructed?

A

(Only for a person who lacks capacity has no one else to support them)
When making decisions about serious medical treatment
When proposing/changing acommodation in hospital or a care home and:
- the person will stay in hospital >28 days
- they will stay in a care home >8 weeks

Only exceptios are urgen decisions.

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14
Q

When would you carry out a procedure if the person lacks capacity and cannot give consent?

A

Under common law:
If the procedure cannot wait until the person regains capacity or if the person is unlikely to regain capacity
AND
The procedure is in their best interests.

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15
Q

What is the court of protection? What can it do?

A

Part of the high court and is relevant in the MCA
It can make declarations as to whether a decision is in the best interests of someone who lacks capacity.
It can also appoint deputies that can make regular decisions in the best interests of a patient and decisions regarding an LPA.

Parties in a disagreement should first attempt to resolve this before applying to the court.

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16
Q

What does the court do when appointing a deputy? What must the deputy do?

A

Must set out the extent of which the deputy can make decisions on behalf of the patient lacking capacty.
Must set out the duration of the deputy acting.
The deputy must always act in the person’s best interests.
The deputy cannot refuse life-sustaining treatment

17
Q

There are certain medical treatments that should go before the court of protection to determine best interests. What are these?

A

Withdrawing artificial nutrition from people with persistent vegetative state
Bone marrow transplants or organ donation
Sterilisation for non-therapeutic purposes
Termination of pregnancy
Any disputes in major decisions

Advantages of this:
These disputes are due to genuine controversy and/or there is uncertainty in what decision would be the best interests of the person.
Also by bringing in a court, with time we improve the decision making process for people lacking capacity.

18
Q

What are some thing you should know about advance decisions (precedence and exceptions etc)

A

Advance decisions override an LPA, unless the LPA was made after the AD.
ADs also take precedence over consent by a court appointed deputy.
With ADs, best interests don’t matter anymore, except for the mental health act. i.e. advance decisions cannot be made to refuse treatment under the Mental Health Act.

ADs are only really advance refusals. An individual cannot make an advance request of treatment, only a binding refusal of treatment.

19
Q

What can an AD not refuse?

A

Basic nursing care

Food and hydration given orally (i.e. NG tube can be refused)

20
Q

An AD needs to be valid. When is an AD invalid?

A

If the person has:

  • competently withdrawn the advance decision.
  • created an LPA after the advance decision and given the LPA the power to make the decision in question.
  • acted in a way inconsistent with the advance decision
21
Q

An AD needs to applicable too. When is an AD not appicable?

A

When there are significant changes in circumstances that weren’t addressed in the original AD (e.g. the person now has children or is pregnant)
If the particular treatment for the condition has siginficantly changed since the AD was made (e.g. an AD made in the 90s regarding HIV treatment would not be applicable today as it’s no longer as shit and actually semi-decent)

What this means is that the person making the AD needs to update their AD regularly in light of changes to their life and medical treatments. If there is reasonable doubt that the AD is aplicable then it becomes inaplicable => default is to act in best interests.

22
Q

How must an Advance Directive be made in the eyes of the law?

A

Must be written and signed.
Must be witnessed and signed by the witness.
Must be specific in the treatments being refused. If it is life-sustaining treatment to be refused that needs to stated clearly.
The person must also indicate they have taken into account any changes that have happened since the first draft of the AD, when updating the AD.

Law Year 3 (3 decks)

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