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8/14/2019 Capacity and Consent Jan 08
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CAPACITY AND CONSENT
M D Noble
January 2008
http://www.bma.org.uk/ap.nsf/Content/mencapact05
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Aims
Capacity Act (7/4/05)
Introduction to the basic concepts
Look at a few examples
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Objectives
Principles of
Consent
Capacity
Basic skills to assess capacity
Considerations when capacity lacking
To begin to develop appropriate attitudes re
patient autonomy
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Consent
Informed
Appropriate level of information
Competent
Capacity
Not coerced
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Consent
Can be withdrawn
Can be verbal, non-verbal or written
Under age 16 may be competent (Gillick)
Somebody with Power of Attorney for
health matters can act on behalf of another
(but not refuse life sustaining treatment
unless specifically stated)
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Case Law
"As a matter of law the parental right to
determine whether or not their minor child
below the age of 16 will have medicaltreatment terminates if and when the child
achieves sufficient understanding and
intelligence to enable him to understandfully what is proposed."
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Capacity
Medical treatment
Financial affairs
Wills
Contracts
Discharge home etc Research
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Mental Capacity Act 2005
Five key principles
Presumption of capacity
Retain right for eccentric/unwise decisions
Right of support for own decisions
Best interests
Least restrictive intervention
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Capacity
Assessing lack of capacity
Who is responsible?
Not global Not related to diagnosis alone, age appearance or behaviour
e.g. because Mr Smith has dementia it does not mean that he
lacks capacity
Issue specific
Capacity assessment should ultimately be carried out
by the person making the decision
May fluctuate
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Capacity
Two stage test
1) Is there an impairment of, or disturbance in
the functioning of the persons mind or brain?2) Has it made the person unable to make a
particular decision/is it relevant to this issue?
(Degree of proof)
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Capacity(1)
History
Is it likely to fluctuate?
Mental state Examination
General evidence e.g. of STM
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Capacity(2)
Understand the information
Retain that information
Use or weigh it up
Communicate decision
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Capacity
Understanding
Relevant information
Assist the process
Nature of the decision
Purpose
Consequences of either choiceHow do we test understanding?
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Capacity
Retaining
Poor Short Term Memory is not automatic
disqualificationInformation need only be retained for a short
period
Specific to the issueShould be assisted e.g. tapes, video
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Capacity
Weighing up
Complex process
Mental state examination
Believing it
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Capacity
Weighing up
Cant use the information
Anxiety disturbing thinking
Psychosis- delusions relevant to the decision
Anorexia belief in body image
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Capacity
Communicate decision
Include simple movements
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Case Law
MB (Medical Treatment)
Refusal to have a Caesarian section because
of a phobia of needles
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Case Law
Re MB (Medical Treatment)
at that moment the needle or mask
dominated her thinking and made her quite
unable to consider anything else.
i.e. weighing up the information
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Case Law
C (Adult: Refusal of Treatment).
A patient diagnosed as a chronic, paranoidschizophrenic refusing to allow his gangrenous
foot to be amputated.
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Case Law
Re C (Adult: Refusal of Treatment).
Decision made to allow him to keep his foot The delusions were not affecting his ability to
weigh up the information
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Mental Capacity Act 2005
Acts in connection with care or treatment
Care can be provided without incurring liability
for acts that otherwise might result in a civilwrong or crime
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Lack of Capacity
Best interest
Powers of Attorney
Common Law
Advance directives
IMCA
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Best Interests
Relates to everything done on patients behalf
Patients wishes must be considered
Least restrictive optionConsult relatives/carers
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Advance directives (anticipatory
refusals) Legally binding if
The patient was a competent adult when
directive was madeBased on sufficient accurate information
The circumstances that have arisen are thosethe patient envisaged
The patient was not subject to undue influencein making the decision
(competence presumed)
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Advance directives
An AD will not be applicable to life-sustaining
treatment unless:
There is a written statement by P to the effect thatthe AD is to apply to the treatment even if life is at
risk
The AD and statement are signed by P, or by
another in Ps presence
The signature is made in the presence of a witness
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Important Changes
Lasting Power of Attorney/Court Appointed
Deputies
Also will be able to make health and welfaredecisions
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Mental Health Act
Concerned solely with treatment for mental
disorder
It is not possible to use it for surgical ormedical procedures unrelated to the mental
disorder
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Cases
Refusing Investigation/treatment
75 year old man with persistent diarrhoea and
weight loss refuses investigations80 year old lady consents to surgery to alleviate
symptoms related to a brain tumour
70 year old man insisting he can manage athome despite falls risk because of amputated
leg and dementia
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Cases
Managing financesPower of Attorney/Court of Protection
Can a patient with dementia make anEnduring Power of Attorney?Simple test
Can the same patient manage theirfinances?Complex!
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Common Cases
Patient with dementia wanting to go home
Need to assess risks first
Occupational therapy
Physiotherapy
History of other risks
Compliance with care package
Can risk be managed
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Capacity
May not be an issue
Right of support for own decisions
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Summary
Consent
Informed
CompetentNot coerced
Capacity
Retained
Believed Understood
Weighed up
Two stage test
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Summary
If in any doubt seek advice
http://www.bma.org.uk/ap.nsf/Content/mencapact05