Mental capacity act(e module) Flashcards
Summarise what the mental capacity act includes
Provides a statutory framework for decision making in adults who lack mental capacity.
• It defines: o The acts and decisions it covers o The statutory principles o Capacity o Clarifying the concept of best interest
In the MCA what is included in the preseumptions of capacity
• All adults are presumed competent unless shown to lack competence o Diagnosis of learning disability, Alzheimer → cannot be altered in the case • Mental competence is task specific • Ensure circumstances aid understanding to individuals who are thought to lack capacity: o Language o Setting o Support o Take account of fluctuations in mental competence
describe the functional approach to the determination of capacity
The determination of the lack of capacity is NOT diagnosis driven • It requires 2 stages function approach: o Is there impairment of, or a disturbance in, the functioning of the mind or the brain? o Is the impairment sufficient to impair capacity?
Describe the Relevance of unwise descisions to the MCA
Another important principle → Unwise decisions • A competent adult can refuse treatment for a good reason, bad reason or no reason, providing that they have mental competence • A person is not to be treated as lacking capacity because they have made an unwise decision
Principle of Equal Consideration • When we try to determine whether a person lacks capacity, decision should not be made soly based on an unwise decision, based on: o Appearance o Assumptions o Age o Race o Gender
List Criteria for capacity
An individual has mental capacity if able to: o Understand the information relevant to the decision o Retain that information o Use or weigh that information as part of the process of making the decision o Communicate the decision by whatever means, talking, signing, etc ▪ Locked in syndrome are considered as mentally incompetent
How is capacity maximised and who assess capacity?
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success o Environment that makes patient feel comfortable and supported, aids etc • Any adult wishing to take action in connection with or on behalf of an individual thought to be lacking capacity • Expert assessment of capacity will only be required for a serious decision and when there is doubt or dispute • The law recognizes that families and carers are not expected to be experts. o However, they need to have a reasonable in lack of capacity which, if challenged, is based on reasonable grounds
Explain the roles of different people that can possible make decisions for someone lacking capacity
Decision Makers under the MCA • Depending on the circumstances, there are a range of people who may lawfully make decisions on behalf of someone lacking capacity: o Carers, health care professional, Donee of LPA, Court appointed Deputy, court Lasting Power of Attorney (LPA) • All competent adult can create an LPA, and only can be created when the adult has capacity • Creation of LPA must comply with strict regulations and be registered with the Court of Protection. • What can LPA do:
o Extent of decision making must be specified in the LPA: ▪ Financial decision making ▪ Personal decision making ▪ Welfare decision making including consent to treatment ▪ Refusal of life sustaining treatment o Donee’s decision must be in the person’s best interest o The donee of the LPA can only make decision when the donor has lost capacity Court of Protection • It is the part of high court and the court has powers to make declarations o E.g. Declaration as to whether a particular decision is in the best interest for those who lack mental capacity • Responsible for making decisions and appointing deputies and in relation to lasting powers of attorneys • The court would expect that parties would try to resolve any dispute before applying for a hearing Court appointed deputies • The Court of Protection may appoint a deputy to make decisions o e.g. If significant decisions need to be made on a regular basis that would otherwise probably go to court • The deputy must act in the person’s best interests • In appointing the deputy, the court will define the scope and duration of the deputy’s authority • The court can never give the deputy the authority to refuse life sustaining treatment
Certain medical decisions should go before the Court of Protection for a determination of best interests. List them:
• Certain medical decisions should go before the Court of Protection for a determination of best interests: o Withholding or withdrawal of artificial nutrition from patients with persistent vegetative states o Organ donation or bone marrow transplants o Sterilisation for non therapeutic purposes, e.g. Contraception o Some termination of pregnancy o Major decisions where there is doubt or dispute about best interests
Explain how best interest is determined
Best Interest and Mental Capacity Act • The MCA provides guidance that does not define best interest • Decisions/Actions must be in the person’s best interest • Unless there is a valid and applicable advance decision then decisions made on behalf of a person lacking capacity must be in the person’s best interest, whoever is making the decision. The least restrictive alternative • An action/decision will not be in a person’s best interest if the same objective can be achieved in a way that is less restrictive of the person’s rights and freedom of action • If a particular action requires restraint then the restraint must be proportionate • The greater the restraint required, the less likely it is that the action is in that person’s best interest How is best interests determined? • Equal consideration and non discrimination • Consider all relevant circumstances: o Will the patient regain capacity? – if so, can this be deferred? o Permit, encourage and aid participation → must be encouraged o The person’s past and present wishes, feelings, beliefs and values → must be taken into consideration o The views of other carers, close family ▪ Close family need to be consulted first, except in a genuine emergency
When can Life sustaining treatment may be lawfully discontinued
Life sustaining treatment may be lawfully discontinued if the treatment is not in their best interests • The decision maker must not be motivated by a desire to bring about the person’s death • Where there is doubt as to best interests a court declaration may be sought but there is no legal obligation to do so
Explain the difference between medical best interest and overal best interest
Medical best interests do not necessarily equate with overall best interest • Health care professionals may often not be in the best position to determine overall best interest, therefore views of carers and close family are likely to be important
How i sthe family involved i individuals who lack capacity
Family o Individuals making decision on behalf of someone who lacks capacity must take all reasonable steps to maximise the involvement of the individual in the decision making process o Unless there is an emergency requiring an immediate decision, the family has a right to be consulted for all major decisions
Explain the role of Independent Mental Capacity Advocates (IMCA)
Under the MCA, there is a statutory duty to appoint an IMCA, if a person lacking capacity has no one to support them and there are: o Decisions relating to serious medical treatment, unless it is an urgent situation o Proposals to move a person into long term care in a hospital or care home (for more than 8 weeks) o Plans to move a person to a different hospital or care home • Role o Representing and supporting the person who lacks capacity so that the person may participate as far as possible in the decision making o Obtaining and evaluating information relevant to decision making o As far as possible ascertaining the person’s wishes and feelings, beliefs and value o Ascertaining alternative courses of action e.g. different care or housing arrangements o Obtaining a further medical opinion if necessary • IMCA is an independent advocate for those lacking capacity who have no one to represent their perspective • IMCA cannot make decisions on behalf of the person lacking capcity • IMCA can appeal to the Court of Protection if they believe that decision makers are not acting in person’s best interests.
A woman who has LD with her boyfriend same too. She lives with full time carers. • GP suggests contraceptive implant because OCP is not the best choice • Woman’s parents don’t agree and decide to hold a case conference to reach consensus or boyfriend should be separated
Answer: the decision to treat should be referred to the court of protection
Explain the difference between law regarding advanced decisions for refusing treatement and refusing life-sustaining treatment
Advanced Decisions of the Law • The principle is that a competent person has the right to decline to undergo treatment, even if the result of his doing so is that he will die • This takes into account the State’s interest in preserving life and preventing suicide • Application o Apply only to refusals to treatment :
▪ Must be informed, competent, voluntary o Need not be written, can be a witnessed oral statement or a witnessed written statement o Maker must understand the consequences of their decision
Advanced decision to refuse life sustaining treatment: o Must be in writing and signed o Must be witnessed and signed by the witness o Must specifically state that decision is to respected even if life is at risk o Must indicate that the maker has taken into account circumstances that have changed from when the decision was first drafted o It is the doctor’s decision as to whether a treatment is considering life sustaining
