Flashcards in Acute Care 1 (MCA, DoLS) Deck (22)
If patient asks for treatment not thought to be of benefit?
GMC Consent Guidelines
If pt asks for a Tx that doctor considers would not be of overall benefit to them, should discuss issues with pt and explore the reasons for their request. If, after discussion, the doctor still considers Tx would not be of overall benefit, they do not have to provide Tx, but should explain their reasons, and explain any other options that are available, including the option to seek a second opinion.
Guidance about how much information should be given to patients about their condition?
GMC Consent: amount of info you share will vary, depending on their circumstances. Tailor approach according to:
1. their needs, wishes + priorities
2. their level of knowledge about + understanding of, their condition, prognosis and the Tx options (the nature of their condition, the complexity of the Tx, and the nature and level of risk associated with the Ix or Tx).
You should not make assumptions about: the information a patient might want or need, the clinical or other factors a patient might consider significant, or a patient’s level of knowledge or understanding of what is proposed.
Check whether pts have understood the info + whether they would like more info before making a decision.
Make it clear that they can change their mind about a decision at any time. You must answer patients’ questions honestly + (as far as practical) as fully as they wish.
Issues surrounding NOT sharing information with a patient about their condition?
GMC Consent guidance
No one else can make a decision on behalf of an adult who has capacity. If pt asks you (or another person) to make decisions on their behalf, explain it is still important they understand the options and what the Tx will involve.
If they do not want this info, try to find out why. If STILL does not want to know detail about condition or Tx, respect their wishes as far as possible, but MUST still give them the info they need to give their consent to Ix or Tx. e.g. what it aims to achieve and will involve e.g. if invasive; level of pain or discomfort might experience, what can be done to minimise it; anything they should do to prepare, and if it involves any serious risks.
If insists they don't want even this basic info - explain potential consequences of them not having it, particularly if it might mean that their consent is not valid. Record that pt has declined this info. Make it clear that they can change their mind and have more info at any time.
DO NOT withhold information necessary for making decisions for any other reason, including when a relative, partner, friend or carer asks you to, unless you believe that giving it would cause the patient SERIOUS HARM.
In this context ‘serious harm’ means more than that the patient might become upset or decide to refuse Tx.
If withhold information from pt, record your reason for doing so in medical records, and be prepared to explain + justify your decision. Regularly review your decision + consider whether you could give info to the patient later, without causing them serious harm.
What does the GMC guidance say about how you should go about sharing information with a patient?
(about their diagnosis, prognosis, Tx etc)
How you discuss pt diagnosis, prognosis & Tx options often as important as the info itself.
• Share in a way that the pt can understand and, whenever possible, in a place and at a time when they are best able to understand and retain it
• Give info that the patient may find distressing in a considerate way
• Involve other members of the healthcare team in discussions with pt, if appropriate
• Give the patient time to reflect, before and after they make a decision, especially if the information is complex or what you are proposing involves significant risks
• Make sure the patient knows if there is a time limit on making their decision, and who they can contact in the healthcare team if they have any questions or concerns.
• Give information to pt in a balanced way. If recommending particular Tx or course of action, explain reasons for doing so, but you must not put pressure on a patient to accept your advice.
• May need to support discussions with pts using written material, visual or other aids. Make sure the material is accurate and up to date.
• Some barriers to understanding and communication may not be obvious; e.g. unspoken anxieties, affected by pain or other underlying problems.
Who's responsibility is it to ensure consent has been obtained from a patient?
GMC Consent Guidance:
If you are the doctor undertaking Ix or providing Tx, your responsibility to discuss it with pt. If not practical, can delegate to someone else, provided you ensure the person you delegate to is suitably trained + qualified, has sufficient knowledge of the proposed Ix or Tx, and understands the risks involved, understands, and agrees to act in accordance with, the GMC guidance. If you delegate, you are still responsible for making sure that the pt has been given enough time and info to make an informed decision, and has given their consent, before you start any Ix or Tx.
When is consent considered to be voluntary (or coerced)?
GMC Consent Guidance:
May be under pressure by employers, insurers, relatives or others to accept particular Ix or Tx – be aware of this + other situations in which pts may be vulnerable – e.g. resident in care home, subject to mental health legislation, detained by police or immigration services, or in prison. Make sure such pts have considered options + reached own decision. If they have right to refuse Tx, make sure they know this and are able to refuse if they want.
Arguably certain amount of coercion in almost all cases?
But only not voluntary when there is undue, excessive or unwarranted exercise of power or trust.
Court decision: "does the pt really mean what he says or is he merely saying it for a quiet life, to satisfy someone else or because the advice and persuasion to which he has been subjected to is such that he can no longer think for himself?"
What to do if a competent patient makes a decision about refusing Ix / Tx, if the decision seems wrong or irrational?
GMC Consent Guidance:
Must respect patient's decision to refuse investigations or Tx, even if you think their decision is wrong or irrational.
Explain your concerns clearly to patient and outline possible consequences of their decision. You must not, however, put pressure on a patient to accept your advice.
When should oral vs written consent be obtained?
GMC Consent Guidance:
Minor or routine Ix or Tx, if satisfied patient understands what you propose + why, oral or implied consent usually enough. If higher risk, get written consent.
By law you must get written consent for certain Tx e.g. fertility Tx- specific laws + codes of practice governs this.
Written consent also needed for:
• Investigations or treatments that are complex or have significant risks
• Significant consequences for patients employment, social or personal life
• Providing clinical care not primary purpose of Ix or Tx
• Tx part of research programme or is innovative Tx designed specifically for their benefit
If not possible to get written consent, e.g. emergency or to relieve serious pain or distress, can rely on oral consent, but must still give pt the info they want or need + record that they have given consent in their medical records.
What was the significance of the Montgomery judgement?
Resulted in a shift from the ‘Bolam test’ (i.e. what would another reasonable doctor have done) to the ‘Test of Materiality’ when considering issues of consent
(note: Bolam test still applies to other negligence cases, but not to consent issues).
What is the test of materiality?
Whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significant to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it
Who does the MCA (2005) apply to?
What type of things could be considered a lack of capacity?
Everyone involved in care, treatment + support of people age ≥16 living in England & Wales who are unable to make some or all decisions for themselves. Also supports those who have capacity + choose to plan their future – everyone in the general population who is >18.
Lack of capacity could be due to: stroke / brain injury, mental health problem, dementia, learning disability, confusion, drowsiness or unconsciousness (due to illness or its treatment), substance misuse.
What are the five statutory principles of the MCA?
(found in Section 1 of MCA)
1. Person must be assumed to have capacity unless it is established that he lacks it (note: cannot assume lack of capacity just because of particular condition or disability).
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (every effort to encourage and support people to make decision themselves, if lack established, still important to involve person as far as possible in making decisions).
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision (right to make decisions others might regard as unwise or eccentric – values beliefs and preferences may differ)
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his BEST INTEREST
5. Before decision made, consider whether purpose for which it is needed can be as effectively achieved in a way that is LESS RESTRICTIVE of the person’s rights and freedom of action.
How is capacity assessed in the MCA?
(outlined in section 3 of MCA)
Lack capacity in relation to a matter if at material time unable to make decision due to impairment of or disturbance in functioning of mind or brain (note: capacity is decision and time specific). Unable to make decision for himself if he is unable to:
1. Understand the information relevant to the decision
- should NOT be considered unable to understand if able to understand when given in appropriate way e.g. simple language, visual aids, etc.
- info includes reasonably foreseeable consequences of deciding one way or another + failing to make the decision
2. Retain that information
- if only able to retain for a short period, this does not prevent them from being able to make the decision!
3. Use or weigh that information as part of the process of making the decision
4. Communicate decision (talking, sign language, any other means).
- every effort to find ways of communicating before deciding they lack capacity based solely on their inability to communicate – will need to involve family, friends, carers or other professionals
How can treatment lawfully be provided to adults who lack capacity to consent?
• Where an adult has no one to make a decision on his or her behalf, treatment can be provided where it is both necessary and in the patients best interests – a ‘best interests’ decision
• Where the incapacitated adult has previously nominated someone to make the decision – a welfare attorney
• Where the Court of Protection has appointed a deputy to make the decision
• Under mental health legislation (MHA)
What is an IMCA?
Independent Mental Capacity Advocate, part of the MCA
Provided by organisation independent from the NHS and Local Authorities; offer non-instructed advocacy to patients with communication difficulties, the advocate protects the principles underpinning ordinary living which assumes that every person has a right to quality of life (8 QoL principles).
IMCA advocacy is NOT best interest advocacy as the advocate does not offer their own opinion or make the decision. They have right to interview patient in private, and have access to their healthcare records.
IMCA MUST be appointed if: person aged >16 who lacks capacity, who has nobody who can be consulted about their best interests, and decision is about:
1. Serious medical treatment (note: for serious medical treatment, NHS staff proposing to take action will usually be the people instructing the IMCA).
2. Long-term NHS accommodation (hospital >28 days or care home >8 weeks)
3. Long-term local authority accommodation (period >8 weeks).
But in an emergency, when urgent Tx is needed, no legal obligation to instruct an IMCA. An IMCA cannot be involved if proposed Tx (despite being ‘serious’) is authorised under the MHA (1983).
They can also be appointed (but no legal duty to so) if
no family or friends to represent them, but does have attorney or deputy appointed solely to deal with property and affairs.
What factors should be considered when making a best interests decision?
(Section 4 of the MCA - best interest checklist)
Must not make decision based purely on age or appearance, or condition / aspect of behaviour which might lead others to make unjustified assumptions
Consider if, and when it is likely, a person may have capacity for the relevant decision
Permit + encourage person to participate or improve their ability to participate, as fully as possible in any act done for him and any decision affecting him.
If relates to life-sustaining treatment, must not be motivated by desire to bring about death
Must consider past + present wishes and feelings (particularly any written statement made when he had capacity), beliefs and values likely to influence decision if he had capacity, other factors he would be likely to consider if able to do so
If practical / appropriate to consult them, MUST take into account: anyone named by the person to be consulted, anyone engaged in caring for person or with interest in their welfare, anyone LPA granted by the person, any deputy appointed for the person by a court.
- If act / decision made by person other than the court: sufficient compliance with this section if he reasonably believes that his decision in best interest of the person.
What is meant by the term best interest?
(general vs legal)
General duty to act in patient’s best interest e.g. Good Medical Practice (GMC): ‘good clinical care must include… referring a patient to another practitioner, when this is in the patient’s best interest’.
2. Legal duty: to act in patient’s best interest when they lack capacity
What is meant by a best interest test?
Objective test of what would be in person’s actual best interest, taking into consideration all relevant factors. NOT a ‘substituted judgement’ test (which seeks to identify what the patient would have wanted + decide accordingly). Takes the patient’s wishes into account where they are known, but they may not be determinative.
Factors that need to be taken into account when making a best interests test include:
• Extent of the incapacitated person’s ability to participate in the decision
• Likelihood that person will regain capacity in sufficient time to be able to decide
• Person’s past & present wishes & feelings
• His or her beliefs or values where they would be relevant to the decision
• Benefits + burdens of the decision
• In any best interest assessment: where possible, discussion with those close to individual to establish things that were important to patient and may impact decision.
What is the purpose of DOLS?
Section 4a of MCA "act does not authorise anyone to deprive someone of their liberty" - unless specific circumstances i.e. DOLS
Safeguards relevant for people who lack capacity to consent to their place of residence and will be deprived of their liberty in these settings
• Right to an IMCA if no family/friends
• Relevant Persons Rep (RPR) – supports them to make appeals and challenge their deprivation
• Role of LPA (can’t authorise a deprivation, but has important say e.g. in conditions, who the RPR is etc)
• Right of appeal – to supervisory body and Court of Protection
• Ensure people can be given care they need in the least restrictive regimes
• Prevents arbitrary decisions that deprive vulnerable people of their liberty
Exists because of the Bournewood judgement – man with autism, severe learning disabilities informally admitted to hospital – unlawfully deprived of liberty
When should DOLS be applied for?
Statutory requirement that institution (managing authority) applies for a DOLS assessment from the local (supervisory) authority.
Acid Test (Supreme Court): Is the person subject to continuous control + supervision? Would try to prevent the person from leaving? (Law Society: based not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave).
• Anyone ≥18
• Has a mental disorder (not including drugs + alcohol)
• Lacks capacity to consent to the arrangements made for their care or treatment in hospital or care home
• For whom deprivation of liberty may be necessary in their best interests to protect them from harm
• Detention under MHA 1983 not appropriate at that time
How does applying for a DOLS authorisation work?
(time scale, assessments etc)
Authorisation obtained in advance (up to 28 days in advance) except in urgent circumstances. Assessments must be completed within 21 days of the request (assessors: doctors, nurses, social workers, psychologists appointed by the managing authority)
1. Age assessment (>18)
2. No refusals assessment (advance decision, LPA)
3. Mental capacity assessment (lacks capacity)
4. Mental health assessment (e.g. LD, not drugs)
5. Eligibility assessment (not for MHA)
6. Best interest assessment: 1 - deprives liberty, 2 - in best interest, 3 - needed to prevent harm, 4 - proportionate response to liklihood and seriousness of that harm
Max duration 12 months, can apply for a further authorisation when it expires. Can be reviewed at any time, and must be reviewed if this is requested by the individual or their representative. If any of the assessments determine that the individual does not satisfy the criteria, supervisory body must refuse authorisation request.
A representative – (suitable relative or friend, or alternatively an IMCA) – will be appointed to represent the individual’s interests.