The Mental Capacity Act

Question 1

What are the presumptions of capacity?

Answer 1

All adults are assumed to be competent unless they show evidence of a lack of competence

Question 2

What is the two stage approach with to determine capacity?

Answer 2

is there an impairment of brain/mental function?
Is the impairment sufficient to impair capacity to make important decisions?

Making a bad choice does NOT mean that the patient lacks capacity

Question 3

What should you do in pts that lack capacity?

Answer 3

Take all steps possible to maximise capacity, mental disability doesn’t necessarily mean not competent

Treatment of adult lacking capacity is lawful if necessary = cannot wait until capacity is regained + in pt BI

Question 4

What are in the best interests of someone who lacks capacity?

Answer 4

Consider if pt will regain capacity

physical/emotional autonomy,

family wishes, previously held wishes

Least restrictive option

Involve carers and loved ones in determining what is in the best interests of a patient

Life-sustaining treatments may be lawfully discontinued if they are deemed not to be in the best interests

If there is doubt about BI in life-sustaining TX, a court declaration may be required (no legal obligation)

Question 5

How do you support those that lack capacity?

Answer 5

Individuals making decisions must take all reasonable steps to involve the individual in decision making – language, setting, support, fluctuations in mental competence

Unless it is an emergency, the family has a right to be consulted for all major decisions

No-one can give consent for adult lacking competence except for LPA or court-appointed deputy

Question 6

What is a lasting power of attorney?

Answer 6

All adults can appoint an LPA provided that they have capacity (over 18) when they appoint the LPA

Needs to be registered with the court of protection, written and signed

Question 7

What decisions can the LPA decide?

Answer 7

final decision-making
personal decision-making
welfare decision-making including consent to treatment
refusal of life-sustaining treatment (must be specified)

Question 8

What are the conditions for an LPA to be valid?

Answer 8

All decisions made by the LPA must be in the best interests of the patient

LPA can only make decisions once the donee has lost capacity (financial can be when has capacity)

If there is doubt, the matter must go to the court of protection, who will issue a declaration

LPA can override AD if appointed after writing the AD but if AD is written after it overrides LPA

Question 9

What decisions must go before the court of protection?

Answer 9

Withholding/withdrawing artificial nutrition from patients in persistent vegetative states (oral feed is basic support where NG tubes are medical intervention)

Organ donation or bone marrow transplantation

Sterilisation for non-therapeutic purposes (e.g. contraception)

Some termination of pregnancy

Major decisions where there is doubt or dispute over the best interests of the patient

Question 10

What is the court of protection?

Answer 10

Has power to make declarations on if decision is in best interests of someone lacking capacity

Appoint court-appointed deputies to act as decision makers (if regular decisions need to be made that would end up in court)

Question 11

What does court-appointed deputies do?

Answer 11

must act in best interest

court defines scope and duration of deputy’s authority but usually can make decisions on behalf of the pt

deputy CANNOT refuse life-sustaining treatment

Question 12

What is an independent mental capacity advocate?

Answer 12

If a person lacking capacity has no one to support them

Decision maker doesn’t have to follow IMCA’s recommendations but does have to consult them.

IMCA CANNOT make decisions but can appeal to the court of protection if they believe decision makers not acting in BI of individual

Question 13

What decisions do IMCA’s take part in?

Answer 13

decisions relating to providing/stopping serious medical treatment (unless urgent),

proposals to move a patient into long-term care in hospital or care home (>8wks/28days in hospital)

plans to move a patient into a different hospital/care home

Question 14

What are precedence and exceptions to advanced decisions?

Answer 14

Take precedence over LPA unless LPA was appointed after AD was made

Take precedence over consent by a court appointed deputy

Best interests do not apply – right to decline treatment even if result will be death

EXCEPTION: can’t refuse treatment under the mental health act

Question 15

What are the conditions of an advanced decision?

Answer 15

ADs can only refuse treatments, not request it

When ADs are written, the patient must be informed, competent (>18) and it must be voluntary

It does NOT have to be written, it can be a witnessed oral statement. (if just refusing treatment)

Maker must understand consequences

Question 16

What can Advanced decisions not refuse?

Answer 16

Basic nursing care

Oral hydration & feeding (artificial feeding (e.g. NG tube/PEG) is considered treatment)

Question 17

Why might an advanced decision be inapplicable?

Answer 17

Significant change in circumstance not addressed previously (e.g pregnancy)

Significant change in prognosis/treatment of the condition since the AD was made (HIV)

Question 18

When is an advanced decision invalid?

Answer 18

Competent withdrawal (at any point) (oral)

LPA was appointed after the AD was written and the LPA was given power to make the decision in question

The patient acted in a way that is inconsistent with the AD

Question 19

To refuse life sustaining treatment an advanced decision must:

Answer 19

Be signed and in writing

Be witnessed and signed by a witness

Be specifically stated that the decision is to be respected even if life is at risk

Indicate that the maker of the AD has taken into account any changes in circumstance since the decision was made

NOTE: whether a treatment is considered ‘life-sustaining’ or not is up to the drs discretion

Question 20

What to do if in doubt over AD?

Answer 20

In an EMERGENCY, if there is any doubt over validity/applicability of an AD, you can treat the pt in best interest

In non-urgent situation apply to Court of Protection for a declaration on validity

Take reasonable steps to enquire if valid AD exists (not expected to search exhaustively), otherwise liable

Question 21

What is the Mental Health Act 1983?

Answer 21

This is a law which sets out who can be admitted, detained and treated in hospital against their wishes

This is only done if you are putting your own safety or someone else’s at risk and you have a mental disorder

Advance directives can be overridden if the patient is subject to compulsory treatment under the MHA 1983

Treatments for mental health disorders cannot be refused by an advance directive

Question 22

When and how can AD’s be withdrawn?

Answer 22

Withdrawal of AD can be oral and withdrawn at any time provided that the patient is still competent

Once the patient loses competence, the AD cannot be withdrawn