Mental Capacity Act and Law Flashcards
What is the Mental Capacity Act 2005?
Is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment. It clarifies obligations on those acting for people who lack capacity and stipulates how individuals should determine capacity.
What is the historical context of the Mental Capacity Act 2005?
It succeeded Common law, which was previously referred to when mental capacity issues were pulled into question.
What did common law state in terms of mental incapacity? (x4 points)
• An individual who lacks mental competence cannot give consent. • Mental competence is task specific e.g., a patient may lack capacity for complex decisions, but not simple one. • Under common law, no one could consent on behalf of an adult who lacks mental capacity. • Treatment for someone who lacks capacity is lawful if it is necessary
What were the issues with common law in relation to mental incapacity? (x4)
How is best interests defined? Who determines best interests? What is the role of previously expressed competent wishes in determining best interests? How do we ensure the rights of those lacking capacity are protected?
How were best interests determined under Common Law?
BOLAM PRINCIPLE was used (arose from English tort law: see ‘Consent, confidentiality and children’) whereby a particular medical decision would be in the interests of the individual lacking capacity if a GROUP of doctors agree that it is in the patient’s best interests.
What are the five key principles of the Mental Capacity Act 2005?
- A presumption of capacity 2. The right for individuals to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions 3. Patient has the right to make what might be seen as an eccentric or unwise decision 4. The statute must be used in best interests
- Use of the stature should be the least restrictive of a patient’s basic rights and freedoms
What is the MCA’s ‘functional approach’ to the determination of capacity? (x2)
(1) Is there an impairment, or disturbance in, the functioning of the mind or brain? (2) Is the impairment sufficient to impair capacity?
How does the Mental Capacity Act 2005 assess capacity? (x4 parts)
It is a decision-specific test. A person is unable to make a decision for themselves if they are unable to (a) understand the information, (b) retain information, (c) use or weigh that information, (d) communicate their decision. Note how this is the same as COMPETENCE.
What if someone lacks capacity (and is unable to understand information), but does consent to a procedure?
You would consider best interests – consider risk:benefit of procedure, age, alternative options, mental implications for someone who does not understand. Also must consider whether capacity is likely to change (fluctuant capacity)?
What is the Principle of Equal Consideration in the Mental Capacity Act?
Decision about capacity should not be made solely based on whether the decision an individual makes is unwise, neither should they be based on appearance, assumptions, age, race, gender etc.
What are the rights of an individual with capacity according to the MCA?
No one can consent on behalf of you, you have a right to refuse treatment, and no one can force treatment on you (provided you are fully informed).
What is the role of the healthcare professional in the MCA?
Give enough information, give patient free choice without being unreasonably pressured.
How are best interests determined in the Mental Capacity Act? (x6)
- Considering wishes and feelings of patient CURRENTLY and when they had capacity in the PAST
- Considering all the circumstances relevant including their physical illness, their mental illness.
- Action must be least restrictive and not disproportionate
- Consider whether they will have capacity to make the decision in future
- Support their involvement in acts done for them.
- Consider the views of carers, family, or people who may have interest in their welfare.
Who is an independent mental capacity advocate (IMCA)? What are their roles?
- Is an advocate and NOT a decision maker for someone who does not have capacity.
- They are independent of the person, represent the person to work out whether the proposed procedure is in the person’s best interests, provide information to help identify the person’s best interests, and challenge decisions which appear not to be in the best interests.
- They have the right to see relevant medical records.
- They also help patients make a complaint if their opinion has not been taken into account by healthcare professionals, or if there is disagreement over best interests.
When is an IMCA indicated for a patient? (x2 (x2))
For people lacking capacity who have NO ONE ELSE to support them when making decisions about SERIOUS MEDICAL TREATMENT, or when proposing/changing ACCOMMODATION in hospital or a care home and the person will (i) stay in hospital over 28 days, or (ii) they will stay in the care home for more than 8 weeks.
