The Mental Capacity Act: Law Flashcards
How does mental incapacity relate to consent
How does common law relate to mental incapacity
An individual who lacks mental competence cannot give consent
Mental competence is task specific
Under common law, no one can consent on behalf of an adult who lacks mental capacity
How does common law relate to treatment of an adult who lacks capacity
Treatment of an adults who lacks capacity is lawful under common law if it is necessary
Treatment is necessary if:
- it cannot wait until capacity is regained, if this is a possibility
- it is in the patient’s best interests
What are the problems with common law
How do you define best interests?
What is the role of previously expressed competent wishes in determining best interests?
How do we ensure that the rights of those lacking capacity are protected?
What is the Bolam principle
What would they have wanted if they were competent
More recent common law in England and Wales has rejected solely using the Bolam principle to determine best interests
Outline the key principles of the Mental Capacity Act 2005
All adults are presumed competent unless shown to lack competence
Competence is task specific
Maximise the adult’s ability to understand
Consider fluctuations in competence
2 stage approach to assess capacity
- Is there impairment/disturbance in the functioning of the mind or brain
- is impairment sufficient enough to impair capacity
Unwise decisions ≠ lacking capacity
What is the Principle of Equal Consideration in the MCA2005
Decision if an individual lacks capacity must
- not solely be based on an ‘unwise decision’
- not be based on appearance/assumptions/age/race/gender
How would you assess if someone has capacity
Understand information relevant to decision
Retain information
Weigh information in process of decision making
Communicate decision by whatever means, talking, signing, etc
You must maximise the patient’s ability to demonstrate capacity
Who assesses capacity
Any adult wishing to take action in connection with/on behalf of an individual thought to be lacking capacity
An expert assessment of capacity will only be required for
-a serious decision
-where there is doubt
Any belief in lack of capacity must be based on reasonable grounds and justified
Families and carers are not expected to be experts
Who makes decisions for individuals lacking capacity
Depending on the circumstances there are a range of people who may lawfully make decisions on behalf of someone lacking capacity
- carer
- HCP
- court appointed deputy
- court
What is an LPA
- how are they appointed
- what can they do
- when can they do this
LPA appointed when competent and has capacity
LPA is registered with the Court of Protection
LPA can
-financial decision making
-personal decision making
-welfare decision making including consent to treatment
-refusal of life sustaining treatment
All decisions made must be made in the person’s best interests
LPA can only make decisions when person has lost capacity
What is the Court of Protection
- what can they do
- why would they appoint deputies
- how would they get involved in medical treatment decisions
Part of the High Court
Has power to
- make declarations
- make decisions and appoint deputies (for LPA)
Court expects parties would try to resolve any dispute before applying for a hearing
Deputy appointed to make decisions
- must act in person’s best interests
- cannot refuse life sustaining treatment
- scope and duration of deputy’s authority defined by Court
Medical treatments - determination of best interests
- withholding/withdrawal of artificial nutrition from patients in vegetative states
- organ donation/bone marrow transplants
- sterilisation for non-therapeutic purposes (contraception)
- some termination of pregnancy
- major decisions where there is doubt or dispute about best interests
How would you consider what is in the person’s best interests
-how does restraint relate to best interests
Unless there is a valid and applicable advance decision then decisions must be made in the person’s best interests
Least restrictive alternative
- action not in best interests if same objective can be achieved in a way that is less restrictive of the person’s rights and freedom of action
- if restraint used, must be proportionate
- greater the restraint => less likely that the action is in best interests
How would you determine best interests
Consider all relevant circumstances
- possibility to regain capacity?
- permit, encourage and aid participation from carers and close family
- patient’s past, present wishes, feelings, beliefs, values
Medical best interests do not always equate with overall best interests
-HCP not always in best position to determine overall best interests
How would you approach life sustaining treatment decisions
May be lawfully discontinued if treatment not in their best interests
Decision must not be motivated by desire to bring about person’s death
When there is doubt regarding best interests, a court declaration may be sought. No legal obligation to do so
How would the family be involved in supporting people who lack capacity
Individuals making decisions on behalf of someone who lacks capacity must take all reasonable steps to maximise the involvement of the individual in the decision making process
Unless it is an emergency that requires an immediate decision, family has a right to be consulted for all major decisions
