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LOOKED AFTER YOUNG PEOPLE,
TRANSITION AND
MENTAL CAPACITY
Roger Catchpole & Damian Hart
2 Case Vignettes
14 year old who has ADHD - Co- Morbid ‘Depression’ responds to Anti –
Depressants
In a relationship which ends very angry – Stops anti- depressants as he does not
want his mood “artificially improved” Still continues to take medication to control
symptoms of ADHD
12 year old girl who has Anorexia Nervosa is refusing all food and appears
withdrawn and perplexed. She recognises all living things need food for energy to
survive – claims she does not want to be incapacitated or die
14 Year old Inconsistency, rejecting anti – depressants potentially motivated by
anger due to relationship breakdown but continuing ADHD medication . There is
no suggestion that capacity to understand is impaired .
12 Year old: Does the girl appreciate the physical dangers of not eating
Although she can understand and retain the relevant information – she is unable
to believe it (in the sense of seeing how it applies to her) or weigh in the balance
Young Peoples Consent to Treatment and Competence is both complex and contradictory . When obtaining consent the Doctor must establish if the child is legally competent legal term ‘have capacity’ to give consent . All people over 16 and over presumed to have capacity to consent to medical treatment – unless evidence to suggest to the contrary If the child is not deemed legally competent consent will need to be obtained from someone with parental responsibility – unless in an emergency Emergency treatment can be provided without consent to save life or prevent serious deterioration in the health of child or young person
Children under 16:
Courts have determined that such legally competent if they have ‘sufficient
understanding and maturity to enable them to understand fully what is proposed’
A minor can consent but their refusal can be overruled by the consent of a person
with parental authority or by the court.
A young person who has the capacity to consent to straightforward , relatively risk
–free treatment may not necessarily have the capacity to consent to complex
treatment involving high risk or serious consequences .
The concept of competence is central to the law’s approach to consent – the ability
to understand information includes the treatment purpose, nature, likely effects
and risks, chances of success and the availability of any alternatives .
Unwise choices are permitted – e.g. a doctor and a patient may view and weigh the
information differently - understanding does not imply that a decision is made on a
rational basis – we all make critical decisions about our lives – such as whom we
want to be in a relationship with, car we buy, holiday, job choice may be made on
our ‘gut feelings rather than rational analysis.
The law may impose a dichotomy
Competent v Incompetent
We could view this from a development perspective
‘A spectrum of ability’. Welthorn and Campbell (1982) compared decision
making in four age groups: (9, 14, 18 & 21 year olds) healthy subjects and
hypothetical situations
14 years olds level of competence similar to 18 and 21 year olds
Deficits in the 9 year olds understanding and reasoning but their conclusions
were very similar to the 14, 18 and 21 years olds.
Alderson (1983) interviewed 120 young people (8- 15 year olds) all undergoing
orthopaedic surgery and also talked to parents and medics to determine
answers to the following question:
“How old do you think you were or will be when you’re old enough to decide
about surgery” Parents asked when they thought their child could make a wise
decision
Young People aged 14
Parents thought 13.9 years
Alderson then researched 983 school children same age but not undergoing orthopaedic surgery - they gave a slightly older age (mean age being 15 – 17) What does that tell us.. Past exposure to treatment decisions made the orthopaedic group of young people more confident about their decision making and also suggests that young people can be prepared for decision making about their treatments. McCabe (1996) provides a review of young people cognitive and social development in relation to decision making Reder & Fitzpatrick (1998) draw attention to the influence of emotional factors impacting upon decision making
The Care Program Approach (CPA) Continuity of Care - To assess, plan and follow up care – young person or adult needs to be at the heart of the process Describing your needs in order to get them met Right Care by the Right People Health and Social Care Needs Regular review especially for young people : Invitation is to work with young people to get this right They need to own this process and not have it done to them
Closing the Gap – Shared Decision Making in CAMHS
(1)Agreeing key problems and goals (2)Understanding options available (3)Agreeing which option will be tried (4)Reviewing progress (5)Making changes as necessary. CAMHS EPBU, CORC & Young Minds
Invitation to work with young people about decision making especially in
relation to mental health due to stigma which makes some young people
and adults afraid to seek help.
Young people are more likely to be competent and contribute to decision
making :
Respect for the young person - encourage trust and confidence
Give information, answer questions
Help them know what to expect
Reduce anxiety
Help the child / young person make sense of the experience
Warn about Risks
Prevent misunderstanding or resentment
To promote confidence and courage
There are choices and choices have consequences
Freedom from pressure , panic / anxiety, pain or other temporary factors
which could impair judgements
Understand the importance and how it applies to them – what it means in
their life
MENTAL CAPACITY ACT (2005)
• Applies to adults (aged 18 and over)
• Most of it applies to young people (defined as those
aged 16 and 17)
• Does not generally apply to children (defined as those
under 16) but there are specific exceptions
MCA 5 PRINCIPLES
• Every adult has the right to make his or her own decisions and must be
assumed to have capacity to make them unless it is proved otherwise.
• A person must be given all practicable help before anyone treats them as
not being able to make their own decisions.
• Just because an individual makes what might be seen as an unwise
decision, they should not be treated as lacking capacity to make that
decision.
• Anything done or any decision made on behalf of a person who lacks
capacity must be done in their best interests.
• Anything done for or on behalf of a person who lacks capacity should be the
least restrictive of their basic rights and freedoms.
TWO STAGE CAPACITY TEST
1. Is there an impairment of, or disturbance in, the functioning of
a person’s mind or brain?
2. Is the impairment or disturbance sufficient that the person
lacks the capacity to make the particular decision. Can they
• Understand the information relevant to the decision
• Retain that information
• Weigh that information as part of the process of making a
decision AND
• Communicate his/her decision (whether verbally or by other
means)
BEST INTERESTS
When making a decision in someone’s best interests you must:
• Involve the person as much as possible
• Find out the person’s wishes and feelings
• Consult people who know the person well
• Consider all relevant information
• Avoid making the decision if it is likely the person will regain
capacity
• Think about what would be the least restrictive option
BEST INTEREST
When making a decision in someone’s best interests you must
not:
• Make assumptions based on the persons age, appearance,
condition or behaviour
• Make a decision involving life sustaining treatment that is
motivated by a desire to end the person’s life
INDEPENDENT MENTAL CAPACITY ADVOCATE
• The IMCA is a safeguard for those people who lack capacity, who have no
one else other than paid staff who ‘it would be appropriate to consult’ (apart
from adult protection cases where this criterion does not apply). The
safeguard is intended to apply to those people who have no network of
support, such as close family or friends, who take an interest in their
welfare.
• Decision-makers in the NHS and local authorities need to determine if there
are family or friends who are willing and able to be consulted about the
proposed decision. If it is not possible, practical and appropriate to consult
anyone, an IMCA should be instructed.
• The IMCA service can be appropriate for young people (aged 16 and 17)
AN EXAMPLE
• Jason is 16 and Looked After. He is experiencing severe and
disabling anxiety affecting his daily functioning and extreme
compulsive behaviours. He has a history of depressive
episodes. He is withdrawn and isolated. His clinician proposes
CBT and a course of anti-depressants (SSRIs).
• What support should be offered to help Jason to make a
shared decision about treatment?