Wk8 Capacity And Competence

Question 1

To have capacity, what must a patient have?

Answer 1

● Understand the presented information
● Recall the information
● Weigh up the decision
● Communicate that decision

Question 2

How can you assess capacity?

Answer 2

You should never assume that someone doesn’t have capacity.
Instead their capacity to make this particular decision should be assessed, with the information presented in the 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 - eg. translators if needed, written information, time to consider, detailed explanation

Question 3

What is GMC guidance on capacity?

Answer 3

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 their age, disability, appearance, behaviour, medical condition (including mental illness), beliefs, their apparent inability to communicate, or because they choose an option that you consider unwise.

Question 4

Why should capacity be assessed?

Answer 4

While we are told to presume capacity, this does not give medical professionals freedom to ignore signs that a patient may not have capacity
If a patient’s 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 this decision should be performed in the interests of protecting the vulnerable
This is considered particularly important if the decision may be life-threatening

Question 5

Two stage test of capacity

Answer 5

Stage 1. Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
Stage 2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

● Understand the presented information
● Recall the information
● Weigh up the decision
● Communicate that decision

Question 6

How to understand the information?

Answer 6

• What information is salient to the decision?
• How can it best be presented to be accessible?
• Don’t assume prior knowledge (eg. that they know what life in a care home would be like)
• Don’t set the bar too high
• They don’t need to understand everything: just the salient information
• They need to understand well enough to make the decision

Question 7

How to retain the information?

Answer 7

needs to be able to retain enough information for a sufficient amount of time in order to make a decision.
The MCA specifies at s.3(3) that ‘the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.’

Question 8

How to weigh the information?

Answer 8

This is the trickiest one.
‘the capacity actually to engage in the decision-making process itself and to be able to see the various parts of the argument and to relate the one to another.’ The PCT v P, AH & the Local Authority [2009]
It does not mean that, having related these arguments to each other, they reach a rational conclusion
Again, they only need to weigh salient information
It is easier to decide whether they are weighing the information appropriately if you know more about their value system

Question 9

How to communicate the decision?

Answer 9

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 10

What is capacity?

Answer 10

Dynamic e.g. following a stroke

The ability to make this particular decision at the material time

Question 11

How does irrationality affect capacity?

Answer 11

Just because a person makes a decision that seems irrational to you, it does not
mean they do not have capacity to make it.
Irrationality :
‘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 12

What is the mental capacity act (2005) principles?

Answer 12

1. Presumption of capacity
2. Support of individuals to make decisions
3. Unwise decisions
4. Best interests
5. Less restrictive option

Question 13

So what do you do without capacity?

Answer 13

a. consult with those close to the patient and other members of the healthcare team, take account of their views about what the patient would want, and aim to reach agreement with them
b. consider which option aligns most closely with the patient’s needs, preferences, values and priorities
c. consider which option would be the least restrictive of the patient’s future options.

Question 14

How to know when capacity isn’t needed in a situation?

Answer 14

1. Can it wait?
   If the loss of capacity is temporary - eg. after neurosurgery, or a head injury - can the decision be postponed until the patient would have capacity again?
2. What would be best in general?
   Is there one course of action which offers clearly better odds of a good clinical outcome?
   Would there be any likely drawbacks with this treatment?
3. What would be best for this specific person?
   Are there any risks you know this patient wouldn’t be willing to take? Are there any outcomes that they would value above all others?
4. Can you get any more information?
   Are there any relatives / carers, or other medical professionals, who might know more about what this patient would want than you?
   Has this patient left any instructions - for example, with a GP?

Question 15

What is an advanced statement?

Answer 15

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

Question 16

What is an advanced decision?

Answer 16

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

Question 17

How are advanced decisions legally binding?

Answer 17

● In writing
● signed by the patient
● signed by a witness
They only cover the circumstances and treatments specified.

Question 18

Is there anyone else who has the right to decide?

Answer 18

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 the donor has lost capacity
Next of kin does not have the right to make these decisions without a LPA. An LPA needs to be registered with the Office of the Public Guardian (OPG).
Anyone can be appointed as an attorney, as long as they have mental capacity themselves

Question 19

When is an independent mental capacity advocate appointed?

Answer 19

If there is a total lack of information:

● The person is 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, and
● There is no one independent of services, such as a family member or friend,
who is “appropriate to consult”

Question 20

What is the court of protection and MCA appointment?

Answer 20

The MCA created a new court to supervise the implementation of the Act
● making decisions on whether someone has mental capacity
● handling best interests’ disputes
● ruling on questions about deprivation of liberty
The Court of Protection can appoint Deputies to make decisions
- longstanding lack of capacity
- not previously established a LPA

Question 21

Define competence

Answer 21

In UK law, the term competence is used exclusively to denote whether or not a person under 18 years of age can make autonomous decisions about their health

Competence refers to the ability of a child or young person to consent to treatment. It is often used interchangeably with ‘capacity’ (eg. in GMC guidance). 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 the MCA)

Question 22

What is gillick competence?

Answer 22

Led to the standard of ‘Gillick competence’ to consent to treatment
children under 16 can consent if they have sufficient understanding 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.

Question 23

What is the validity of consent?

Answer 23

Just because they are competent to give it does not mean all consent will be valid It still needs to be informed, and voluntary
Children may be particularly vulnerable to coercion

Question 24

What are the fraser guidelines?

Answer 24

● He/she has sufficient maturity and intelligence to understand the nature and implications of the proposed treatment
● He/she cannot be persuaded to tell her parents or to allow the doctor to tell them
● He/she is very likely to begin or continue having sexual intercourse with or without
contraceptive treatment
● His/her physical or mental health is likely to suffer unless he/she received the advice or
treatment
● The advice or treatment is in the young person’s best interests.

Originally applied to contraception - now also apply to treatment of STIs and TOP (since 2006)

Question 25

GMC overview on refusal of treatment

Answer 25

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 the capacity to consent. In Scotland parents cannot authorise treatment a competent young person has refused. In England, Wales and Northern Ireland, the law on parents overriding young people’s competent refusal is complex.You should seek legal advice if you think treatment is in the best interests of a competent young person who refuses.

Question 26

Refusal of treatment

Answer 26

Competent refusal of treatment that appears to be in their best interests is treated differently in law than consenting to treatment

Question 27

BMA refusal of treatment

Answer 27

“In England, Wales and Northern Ireland, a competent refusal can be overruled by a court or by a person with parental responsibility.”

However, just because this would make treatment lawful does not mean it would make it ethical. You should weigh up the harms of proceeding vs. the harms of honouring their refusal