Mental capacity to consent to treatment Flashcards
Mental Capacity to Consent to Treatment
Competent Individuals must consent for medical treatment
Schloendorff v Society of New York Hospital - consent is critical in determining which surgery can go ahead
Heart of England NHS Trust v JB
patient who suffered from paranoid schizophrenia and refused life saving leg amputation - reinforces fact in mental capacity act that consent is decision specific - found the patients condition affected capacity to make some decisions not all decisions, and here the patient had sufficient capacity to refuse surgery
Re T
patient who was 34 weeks pregnant and injured in car accident, after speaking to mother she refused potentially life saving blood transfusion and her mother was a jehovahs witness although the patient did not share beliefs, she shared the values her mother held - a competent adult patient can make a decision not withstanding whether its irrational or reasons for treatment are unknown
What are the requirements for valid consent?
Patient must have capacity to consent
Consent must be voluntarily given
Person must understand in broad terms the nature of the treatment to which they have consented
Re T
doesn’t need to be in writing - rarely is as it will typically not have time to sign forms especially in emergencies, can be inferred through patient behaviour e.g. patient extends hand for injection to be given etc. - look at context
however for complex surgery it is good practice to get written consent
Once you consent it is not a contract so can be withdrawn at any time
Statutory requirement in some cases for written consent - Human Fertilisation and Embryology Act 1990, Sch 8 – fertility treatment - must have written consent for this
Which legislation provides the legal authority to treat adults who lack capacity?
mental capacity act 2005
What are the five principles in the legislation for treating adults who lack capacity? - FRAMEWORK YOU APPLY TO PROBLEM Q
s.1 MCA 2005
- A person must be assumed to have capacity unless it is established that he lacks 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.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- 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. - best interest test refers to unique capacity of the courts to make a declaration on behalf of patient in their best interest - jurisdiction applies when person lacks capacity
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. - if we have alternative treatments and patient lacks capacity, always opt for least invasive alternative
What is the statutory test for capacity?
normally performed by paramedics when they go to a scene unless patient has dementia etc
section 2(1) and (2) MCA Inability to make a decision due to impairment
emphasis on at material tie cannot make decision for themselves
doesnt matter if impairment is temp or permanent e.g. for 16/17 year old if capacity is fluctuating it is presumed they do not have capacity
section 3 MCA
person cannot make a decision for himself if he cannot understand info relevant to decision, retain it, weight that info, communicate his decision
3.2
person not regarded unable to decide if understand explanation that is appropriate to his circ e.g. simple lang, visual aids
3.3
if can retain info for short period then able to decide
Impairment or disturbance of the mind
Mental Capacity Act, Code of Practice - para 4.12
E.g. Dementia, Significant learning disabilities Temporary or fluctuating factors – Code of Practice para 4.26/4.27
Inability to communicate and irrational decisions
If person cannot communicate: Code of Practice, para 4.23
Irrational decisions and capacity
Are irrational decisions evidence of incompetence or are these decisions to be respected?
Kings College NHS Foundation Trust v C - adult patient who had led a good life and suddenly her life lost spark so attempted suicide, didn’t immediately die but her conditioning was life threatening due to overdose, continued to refuse lifesaving dialysis and her only reason for this was her life lost spark, her daughters agreed that she does not want to live and supported her decision
Urgent decisions – may be impracticable to help person make their own decision:
Mental Capacity Act, Code of Practice, Para 2.9
instead of seeking their consent, still required to speak to patient and inform them what treatment is being applied and why
Which statutory principles govern decision making on behalf of adults lacking capacity?
1) Least restrictive alternative principle:
A Local Authority v K - patient had learning disabilities and felt if she is not sterilised she may become pregnant so carers suggested sterilisation but court disagreed and decided other contraceptive measures which are less restrictive so the least invasive treatment should be applied instead
2) Best interests test - Section 4 MCA
must consider whether likely person will at some time have capacity in relation to matter in Q and when
so far as reasonably practicable, permit and encourage person to participate or improve ability to participate
mustnt when determination relates to life sustaining treatment be motivated by desire to bring about his death
must consider patients past and present wishes and feelings, beliefs and values, other factors
must consider if it is practicable to consult anyone named by person as someone to be consulted on, anyone who is caring for person, person with power of attorney etc but family does not make decision on behalf of patient
Patient Views
Aintree University Hospitals NHS Foundation Trust v James
patient on ventilator who suffered acute kidney injury and stroke, left him minimally conscious, couldn’t make any decisions at material time, shows that not only taking into account clinical interest but patients past and context, can rely on ppl closely related or close to patient, merely witnesses, they don’t decide on patient’s treatment
Wye Valley NHS Trust v B
73 yr old with history of mental illness, clear patient had lost full capacity to make decisions, suffered chronic foot ulcer, led to systemic infection and treatment was amputation - he refused this - court stated patient lacks capacity but thought should give weight to previous wishes at time he had capacity - and those previous wishes were he would be reluctant to undergo amputation
An NHS Trust v K
cannot compel doctors to do a procedure, court only permits - Even if declaration issued that treatment should be applied in patient’s best interest, does not mean doctors have to proceed
Consulting family and others
Winspear v City Hospitals Sunderland NHS Foundation Trust
disabled patient who lacked capacity, he suffered degenerative condition which would lead to death, DNR placed by doctors and this was not consulted with his mother, his mother challenged this decision saying she should have been informed about note - court found although doctors enjoy wide discretion, there was nothing that would prevent doctors to consult mother, enough time to inform her - failure to consult vio A.8(2) ECHR - must consult family in circ similar
Tension with Confidentiality - Mental Capacity Act Code of Practice 5.56 - right to private and family life is also
that of the patient, there is a right of confidentiality so why would they consult family
Not just best medical interests
Aintree University Hospitals NHS Foundation Trust v James
decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question
put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be
Re Y
adult patient who was mentally incapable who was asked to donate bone marrow to sibling, Q was can they extract bone marrow from patient who lacks capacity in circ to save family member - found can enhance their safety and welfare and they would suffer more if sibling died so in donors best interest to extract bone marrow as protect family
What legal steps can a person take to ensure his or her care and treatment wishes are respected in the future, once s/he loses capacity?
II. Advance Decision to refuse treatment- s24 MCA
Person must be 18 or older and have capacity at time advance decision is made Advance decision – - another point of difference between 16 and 18 yr olds
can be withdrawn/altered at any time
no specific formalities - can be made verbally, exception to life saving treatments as need to be in writing
If not valid due to non compliance with formalities then: Considered as part of patients views under the best interests test
Section 25(2) Not Valid if Patient:
withdrawn decision when had capacity, if conferred auth to donee to refuse consent, done anything clearly inconsistent with advance decision making
validity of advance decision - refusing life saving treatment
Patient must acknowledge they intend to refuse treatment even if this puts life at risk
Decision must be in writing and signed by patient or representative in his presence
signature must be witnessed
Effect of Advance Decision
Any doubts - an application can be made to the court to consider validity - s. 26(4) MCA
III. Proxy Decision Making
- Section 9(1) (a) –P (“donor”) can nominate someone with lasting power of attorney (“donee”)
- Register lasting power of attorney in the Office of the Public Guardian before using it - or can be done online
- If person regains capacity then donee has no right to make further decisions
- Requirement that donee makes decisions in ‘best interests’ of person
IV. Doctors and Liability
Generally doctors decide on capacity – not courts - unless doubt or family disagrees with doctor or if it involves life saving treatment but in everyday interactions it will be doctors who decide
Section 5 of Act - to be protected from charge of battery doctor must:
- Take reasonable steps to establish if patient has capacity - Have a reasonable belief that person lacks capacity - Reasonably believe treatment is in person’s best interests
V. Using Restraints/Force
Section 6(2) MCA – doctor can use restraint on a number of conditions
- D reasonably believes that it is necessary to do the act in order to prevent harm to P- 6(2) - Act is a proportionate response to— 6(3) a) the likelihood of P's suffering harm, and b) the seriousness of that harm.
Onus on doctor to prove restraint was necessary and not just convenient
- Art 3 Human Rights Act 1998
VI. Role of the Court
Court of Protection – specialist court to administer MCA
Section 15, MCA – Power of court to make declarations
- (1) “The court may make declarations as to—
a) whether a person has or lacks capacity to make a decision specified in the declaration; b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
(2)“Act” includes an omission and a course of conduct.”
Court involvement: generally unusual – decisions taken by doctors in consultation with family
Medically controversial treatment – court involvement needed
See, MCA, Code of Practice – para 8.18 and 8.23
MCA – Key points
