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
How would an Independent Mental Capacity Advocate (IMCA) be involved in supporting people who lack capacity
- when would an IMCA be involved
- what decisions would they be involved in
- what is the role of an IMCA
- what can IMCAs NOT do
A statutory duty to appoint an IMCA if an individual lacks capacity and has no one to support them
Get involved in decisions relating to
- serious medical treatment unless it is an urgent situation
- proposals to move a person into long term care in a hospital/care home for more than 8 weeks
- plans to move a person to a different hospital or care home
Represents and supports people who lack capacity so they can participate as far as possible in the decision making
- obtaining and evaluating information
- ascertain the person’s wishes, feelings, beliefs and values as much as possible
- ascertaining alternative courses of action
- obtaining further medical opinions if needed
- appeal to the Court of Protection if they believe decision makers are not acting in the person’s best interests
Cannot make decisions on behalf of the person lacking capacity
How does an advance decision relate to an LPA and deputy
- which takes priority
- what is the exception to an advance decision
ADs take priority over LPA unless LPA was made later
ADs take priority over consent by deputy
Best interests do not apply here
ONLY EXCEPTION IS TREATMENT UNDER THE MHA
-cannot make an AD to refuse treatment under the MHA
Describe what an AD application would involve
Refusals of treatment only
Informed
Competent
Voluntary decision
Does not have to be written, can be a witnessed oral statement
Decision maker must understand consequences of the decisions
What can individuals not refuse under an AD
Basic nursing care
Oral hydration and nutrition
-artificial means = medical treatment
When will an AD be invalid and cannot be respected
Competently withdrawn
Created an LPA after AD and LPA has power to make decision in question
Acted in a way that is inconsistent with the AD
When will an AD be inapplicable and cannot be respected
Significant change in circumstances not addressed in AD
Significant change in prognosis/treatment of condition since AD made
How would ADs differ when refusing life sustaining treatment
MUST BE WRITTEN AND SIGNED BY INDIVIDUAL
WITNESS MUST ALSO SIGN
Must specifically state that decision is to be respected even if life is at risk
Must indicate that maker has taken into account circumstances that have changed form when the decision was first drafted
It is the doctor’s decision to decide whether a treatment is life sustaining
How would an individual change their mind about ADs
Withdrawal can be oral
Can be done at any time as long as individual is competent
Once competence lost => cannot be withdrawn
How would doctors go about ADs in practice
Liable if
-decision to give treatment made in face of valid and applicable AD
Act requires that HCPs take reasonable steps to enquire if an AD exists
- not liable if they were satisfied that a valid and applicable AD exists
- not liable for withholding treatment if they believed a valid and applicable AD required this
But can treat patients in an emergency if there are doubts over validity/applicability
If in a non urgent situation, can apply to the Court of Protection for a declaration of the existence/validity/applicability of an AD
