Week 8

Question 1

What is needed for competence to be valid

Answer 1

Informed
Voluntary
Capacitous

Question 2

What does it mean if someone lacks capacity

Answer 2

Cannot give valid consent

Question 3

Autonomy: self-legislation or self government

Answer 3

Refers to the ability of an individual to choose how to live their life in accordance with their own values and beliefs

Question 4

What does losing capacity mean

Answer 4

Losing the ability to decide in accordance with our own values

Question 5

To have full autonomy you must be able to

Answer 5

Freely make the choices that will really affect your life

Question 6

Society as a collection of autonomous individuals

Answer 6

The role of a society is to maximally endow its citizens with the ability to make autonomous decisions
This is a form of individualism

Question 7

Problems of individualism

Answer 7

Autonomous wishes of individuals often conflict
People may want things that are unfair or detrimental to others
Battery of rights, which are constantly competing with those of others

Question 8

Capacity

Answer 8

Reason enabling autonomy
If the reason is absent/diminished the decision is suspect- not truly autonomous

Question 9

What is capacity

Answer 9

Anything that interferes with an individuals ability to make decisions generally will diminish their capacity
To have capacity a patient must be able to:
Understand presented info
Retain info
Weigh up decisions
Communicate decision

Question 10

Capacity varies by the decision

Answer 10

You should never assume someone doesn’t have capacity
Instead their capacity to make this particular decision should be assessed with the info presented in most accessible way possible
A patient may have capacity to make some decisions and not others
You should provide all possible help and support to enable them to make the decision

Question 11

GMC guidance

Answer 11

You must start from the presumption that every adult patient has capacity to make decisions about their treatment care
You must not assume a patient lacks capacity to make a decision solely because of age, disability , appearance, behaviour, medical condition, beliefs, their apparent inability to communicate or because they choose an option that you consider unwise

Question 12

The presumption of capacity has limits

Answer 12

While we presume capacity, this does not give medical professionals freedom to ignore signs that a patient may not have capacity
If a patients decision-making seems erratic or you know they have a condition which could affect their ability to make decisions, an assessment of their capacity to make decision should be performed in interest of protecting vulnerable
Important if decision may be life-threatening

Question 13

The two stage test

Answer 13

Stage 1: is there an impairment or disturbance in the functioning of a persons mind or brain
Stage 2: is the impairment or disturbance sufficient that the person lacks capacity

Question 14

Stage 1

Answer 14

Capacity is the dominion over decision making
Can also include factors from elsewhere in body affecting brain function e.g. pain, overwhelming emotional states in extreme situations, confusion, shock, fatigue, drugs , panic induced by fear

Question 15

Stage 2

Answer 15

Understand info
Retain info
Weigh up decision
Communicate decision

Question 16

Understand info

Answer 16

What info is salient to decision
How can it best be presented to be accessible
Don’t assume prior knowledge
Don’t set bar too high- dont need to understand everything, need to understand well enough to make decision

Question 17

Retain info

Answer 17

Needs to be able to retain enough info for a sufficient amount of time in order to make decision
Doesn’t need to be long period of time

Question 18

Weigh up info

Answer 18

‘The capacity actually to engage in decision-making process itself and to be able to see the various parts of argument and relate to one another’
It doesn’t mean that having related these arguments to each other, they reach a rational decision
Only need to weigh salient info
Easier to decide whether they’re weighing info appropriately if you know more about value system

Question 19

Communicate decision

Answer 19

Facilitate communication as far as you can
Reproduce the manner by which they usually communicate
Provide all necessary tools and aids
Enlist the support of any relevant carers or friends

Question 20

Capacity is

Answer 20

Dynamic: Capacity is the ability to make this particular decision at the material time
Independent of whether you agree: just because a person makes a decision that seems irrational to you, doesn’t mean they dont have capacity to make it

Question 21

Irrationality

Answer 21

‘A decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’

Question 22

Capacity is capacity to choose between, or refuse offered treatment

Answer 22

It does not confer the right to demand treatment that a doctor does not think is medically indicated or in patients best interests
Patient autonomy must be weighed against what is objectively best for them (beneficence) and fair distribution of resources (justice)

Question 23

The mental capacity act 2005

Answer 23

Applies to all those involved in the care of those who are over 16 and lack the capacity to make some or all decisions for themselves
Underpinned by 5 key principles:
Presumption of capacity
Support of individuals to make decisions
Unwise decisions
Best interests
Least restrictive option

Question 24

What to do if patient doesn’t have capacity

Answer 24

You are responsible for deciding what would be of overall benefit to patient
In doing this you must:
Consult with those close to patient and other members of healthcare team taking account of their views and what patient would want and aim to reach agreement
Consider which option aligns most closely with patients needs, preferences, values and priorities
Consider which option would be least restrictive of patients future options

Question 25

Can it wait

Answer 25

If loss of capacity is temporary can decision be postponed until patient has capacity again

Question 26

What would be best in general

Answer 26

Is there one course of action which offers clearly better odds of a good clinical outcome

Question 27

What would be best for specific person

Answer 27

Are there any risks you know this patient wouldn’t be willing to take
Are there any outcomes that they would value above others

Question 28

can you get any more info

Answer 28

Are there any relatives/ carers or other medical professionals who might know more about what this patient would want
Has patient left any instructions

Question 29

What is an advanced statement

Answer 29

Any information which the patient feels is relevant to their future care, should they lose the capacity to make decisions

Question 30

What is an advanced decision

Answer 30

Refers only to the advanced decision to refuse certain treatment in specified circumstances

Question 31

Advanced decisions are legally binding as long as they meet criteria

Answer 31

In writing
Signed by patient
Signed by witness
They only cover the circumstances and treatment specified

Question 32

Anyone else who has right to decide

Answer 32

Lasting power of attorney: two types- health and welfare/property and financial affairs
Legal document, conveying power to make certain decisions to a named person whenever don or has lost capacity
Next of kin does not have right to make decisions without a LPA
LPA needs to be registered with Office of the Public Guardian OPG
Anyone can be appointed as an attorney as long as they have mental capacity themselves

Question 33

Independent mental capacity advocate

Answer 33

The person aged 16 or over
A decision needs to be made about either a long term change in accommodation or serious medical treatment
The person lacks capacity to make that decision
There’s no one independent of services such as a family member of friend, who is “appropriate to consult”

Question 34

Court of protection

Answer 34

Making decisions on whether someone has mental capacity
Handling best interests disputes
Ruling on questions about deprivation of liberty
COP can appoint deputies to make decisions
-longstanding lack of capacity
-not previously established a LPA

Question 35

Definitions of competence

Answer 35

In UK law competence is used exclusively to denote whether or not a person under 16 can make autonomous decisions about health
In USA it refers to a long-term judgement that a patient lacks capacity taken by a court

Question 36

What is competence

Answer 36

Refers to the ability of a child or young person to consent to treatment. It’s often used interchangeably with ‘capacity’. However while you can talk about capacity or competence for someone under 16 in the UK the term competence is not used in a legal context with adults (as they fall under mental capacity act)

Question 37

Gillick competence

Answer 37

Children under 16 can consent if they have sufficient maturity and intelligence to fully understand what is involved in a proposed treatment, including its purpose, nature, likely effects and risks, chances of success and the availability of other options
It is assumed that those over 16 have Gillick competence

Question 38

Maturity

Answer 38

Takes account of the child’s experiences and the child’s ability to manage influences on their decision making such as information, peer pressure, family pressure, fear and misgivings

Question 39

Intelligence

Answer 39

Takes account of the child’s understanding, ability to weigh risk and benefit, consideration of the longer term factors such as effect on family life and on such things as schooling

Question 40

What is the area of brain associated with anticipating consequences and managing far reaching decisions

Answer 40

Pre-frontal cortex

Question 41

The Fraser guidelines

Answer 41

Refer to specifically to whether or not someone under 16 can be prescribed contraceptives without parental knowledge. Not related to broader competence
-he/she has sufficient maturity and intelligence toy understand nature and implications of proposed treatment
-they cannot be persuaded to tell parents or to allow doctor to tell them
-they’re very likely to continue having sexual intercourse with or without contraceptive
-they’re physical or mental health is likely to suffer unless they receive advice or treatment
-advice or treatment is in young persons bets interests

Question 42

Fraser guidelines validity of consent

Answer 42

Still a consent process
Just because they’re competent doesn’t mean all consent will be valid
Still needs to be informed and voluntary
Children may be very vulnerable to coercion

Question 43

If they aren’t Gillick competent

Answer 43

GMC: if a child lacks capacity to consent you should ask for their parents consent. It is usually sufficienct to have consent from one parent. If parents cannot agree and disputes cannot be resolved informally, you should seek legal advice about whether you should apply to the court

Question 44

Scope of parental responsibility 2015

Answer 44

Is this a decision that a parent should reasonably be expected to make
The extent to which the child agrees/resists
Are there any factors that might undermine the validity of this particular persons parental consent

Question 45

Refusal of treatment

Answer 45

Competent refusal of treatment that appears to be in their best interests is treated differently in law than competent consent
GMC:
‘Parents cannot override the competent consent of a young person to treatment that you consider is in their best interests. But you can rely on parental consent when a child lacks capacity to consent’
Should seek legal advice if you think treatment is in best interests of a competent young person who refuses
“ in England, wales and Northern Ireland, a competent refusal can be overruled by a court or by a person with parental responsibility”

Question 46

Least restriction

Answer 46

No UK court has ever upheld the competent refusal of a minor to lifesaving treatment
Human rights act 1998 and childrens act 1989

Question 47

Parental overrule of refusal

Answer 47

Parents do not lose ability to consent on child’s behalf once child gains Gillick competence therefore they could provide the consent that the child will not
In practice it’s advisable to seek a ruling from the Court of Protection in this situation