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Medical Law and Ethics > Mental Capacity > Flashcards

Mental Capacity Flashcards

1
Q

When did the Mental Capacity Act (MCA) come into place?

A

2007

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2
Q

Who does the MCA apply to?

A

Anyone involved in the care, treatment and support of people aged 16 and over living in England and Wales who are unable to make some or all decisions for themselves.

It deals with the assessment of a person’s capacity, sets out provisions by which people can plan ahead for a time when they may lack capacity and creates important safeguards for people who lack capacity.

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3
Q

When are you required to make an assessment of capacity?

A

Before carrying out any care or treatment - the more serious the decision, the more formal the assessment of capacity needs to be.

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4
Q

Capacity is time and decision specific. What does this mean?

A

Decision: A person can have capacity to make one decision but not another.

Time: A person can have capacity to make a decision at one time but not another, if their capacity fluctuates or is temporarily lost.

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5
Q

Capacity is variable. Describe the capacity of:

  1. A person who has a high fever due to infection and is delirious
  2. A person in a persistent vegetative state due to major brain injury
A
  1. May not have capacity at the time he is delirious but may recover capacity once treated.
  2. Will permanently lack capacity.
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6
Q

Does a patient with dementia always lack capacity?

A

No - may have variable capacity and be able to make some decisions but not others

Don’t assume

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7
Q

How is capacity assessed?

A

Two-stage capacity test

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8
Q

What question should be asked in stage 1 of capacity test?

A

Is there an impairment or disturbance in the functioning of the person’s mind or brain?

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9
Q

If the answer to question 1 is ‘yes’, when then needs to be tested?

A

The person’s ability to make the decision at hand should be tested to establish whether the impairment or disturbance is sufficient to undermine the person’s capacity to make that particular decision.

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10
Q

What following questions should be asked in stage 2 of capacity test?

A
  1. Is the person able to UNDERSTAND the information relevant to the decision?
  2. Are they able to RETAIN the information relevant to the decision?
  3. Are they able to USE or WEIGH the information to reach a decision?
  4. Are they able to COMMUNICATE the decision by any means?
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11
Q

If the answer to any of the questions asked in stage 2, what does this mean?

A

The person fails the test and is regarded as lacking capacity

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12
Q

Through this test, what does the Act minimise?

A

The possibility that a patient will be judged incompetent just because they make a decision that doctors disagree with.

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13
Q

What should be done if you believe the patient doesn’t understand the information and yet there is no impairment or disturbance?

A

Consider how to covey information in a different way.

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14
Q

What should be done if you believe the person is unable to retain or weigh the information and yet there is no impairment or disturbance?

A

Maybe more time and support is needed to reach a decision

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15
Q

If a patient is judged to lack capacity, what legal permission does this give the doctor?

A

To make treatment decisions on their behalf BUT legal duty that these decisions are in the BEST INTEREST of the patient

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16
Q

Does the ACT give close friends/carers/relatives legal rights to make decisions?

A

NO - unless they have a Lasting Power of Attorney

This must be sensitively explained to friends/carers/relatives.

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17
Q

When is there an exception to the legal duty of making a decision in the best interest of a patient who lacks capacity?

A

If a valid and applicable ADVANCE DECISION

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18
Q

What should you consider when making decision in patient’s best interests?

A
  1. Their past and present wishes and feelings
  2. Any relevant written statement made when they had capacity
  3. Their beliefs and values
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19
Q

What else should you ensure to do when making decisions in the patient’s best interests?

A
  • Encourage participation
  • Avoid discrimination (age, appearance, condition, behaviour)
  • Will the patient regain capacity again? Can the decision wait until they do?
  • Consult others for their views (if practical and appropriate)
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20
Q

Who is appropriate to be consulted about the patient’s best interests?

A
  • Anyone previously named by the person to be consulted
  • Anyone engaged in care for the person
  • Close relatives, friends etc
  • Anyone appointed under a Lasting Power of Attorney
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21
Q

What is ‘substituted judgement’?

A

An attempt to determine what the patient would have decided if they were able

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22
Q

Should judgement be ‘best interests judgement’ or ‘substituted judgement’?

A

Best interests judgement

While the person’s wishes and views should be taken into account, it should be an objective test of what is in the person’s actual best interests.

BUT - their own wishes and views are of great significance.

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23
Q

How must the information relevant to the decision be given to the person?

A

In a way that is appropriate to their circumstances

E.g; simple language, visual aids etc

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24
Q

Must the foreseeable consequences of the decision be told to the patient?

What may a failure to believe indicate?

A

Yes

Failure to believe may indicate underlying mental illness and lack of capacity

25
Q

What does the Re C case become generally known for?

A

Adult; refusal of medical treatment

26
Q

What happened with the Re C case?

A
  • Patient suffering from schizophrenia in Broadmoor hospital (had been there for 30 years)
  • Developed a gangrenous foot
  • Surgeons felt that without an amputation below knee would result in < 15% survival
  • Patient said he did not want surgery - this went to court and he won
27
Q

What judgement was made in Re C case?

A

Judge determined that even though his ‘general capacity is impaired by schizophrenia’, they were satisfied that ‘he has understood and retained the relevant treatment information, that in his own way he believes it, and has arrived at a clear choice’.

28
Q

What was the outcome of the Re C case?

A

Patient did not have leg amputated and DID survive

29
Q

Was belief an issue in the Re C case?

A

Patient believed that the doctors believed he would do, but may not have believed it himself.

If a decision appears eccentric/unwise, it does not mean the person doesn’t BELIEVE the information given.

30
Q

What is a Lasting Power of Attorney (LPA)?

A

MCA allows a person to choose someone they trust to make decisions on their behalf if, sometime in the future, they lose capacity or do not wish to make these decisions themselves.

31
Q

How old must the person granted an LPA be?

A

18 and older

32
Q

What are the 2 types of LPA?

A
  1. The Property and Financial Affairs LPA

2. The Health and Welfare LPA

33
Q

What does the Property and Financial Affairs LPA allow?

A

This allows a person to appoint someone to manage their FINANCES and PROPERTY

34
Q

What does the Health and Welfare LPA allow?

A

This allows a person to appoint someone to make their decisions on their behalf about their HEALTH and WELFARE when they lose capacity.

The attorney can make decisions about MEDICAL TREATMENT but not about LIFE SUSTAINING TREATMENT unless this is EXPLICITLY STATED

35
Q

What happens if someone with an LPA that makes a decision that is not judged by the treatment team to be in the patient’s best interest?

A

This can be challenged in court

36
Q

Is it necessary for advance decisions to be in writing?

A

No - but verbally expressed advance refusals must be recorded in patient’s notes.

37
Q

What is the exception to advance decisions not being needed in writing?

A

The refusal of life-sustaining treatment

38
Q

How must a refusal of life-sustaining treatment be expressed?

A

Must be written and signed by the person and a witness, and included a statement that the decision is to apply even if the person’s life is at risk

39
Q

Does MCA create a presumption of capacity?

A

Yes

40
Q

Does a patient have to provide evidence of capacity when creating a written advance decision?

A

No

But the doctor can assess whether the person has capacity to make the advance decision to refuse treatment

41
Q

In order for an advance decision to be effective, what must it be?

A

Valid and effective

42
Q

What makes an advance decision not valid?

A
  1. If person WITHDREW it PRIOR to losing capacity
  2. Appointed someone with LPA to give or refuse consent to the treatment to which the ADVANCE DECISION RELATES after writing the advance decision
  3. Has made expressions INCONSISTENT with the advance decision
43
Q

Does the person’s withdrawal of an advance decision have to be in writing?

A

No

44
Q

When is an advance decision not applicable?

A
  1. If patient regains capacity
  2. If any circumstances specified in the advance decision are absent
  3. If there are reasonable grounds for believing that circumstances exist which the person DID NOT ANTICIPATE at the time the advance decision was made (and if these circumstances would have affected their decision)
45
Q

What must be considered when deciding whether an advance decision applies to proposed treatment?

A
  1. How long ago decision was made?
  2. Have there been changes in patient’s person life? (e.g. person is now pregnant)
  3. Have there been developments in medical treatment that patient did not foresee? (e.g. new meds/treatments)
46
Q

Is ‘I don’t want to live as a vegetable’ enough to count as an applicable decision?

A

No

47
Q

What are advanced decisions?

A

People may make a decision in advance to refuse treatment, even if it results in their death, if they should lack capacity in the future.

People can also express the wish FOR certain treatments in advance.

48
Q

How old must a person be to make an advanced decision?

A

At least 18 NOT 16

49
Q

What treatment can NOT be refused under advanced decisions?

A

Those required to keep a person comfortable; warmth, shelter, offering food/water by mouth (basic care)

50
Q

Do best interests apply in advance decisions? Why is this?

A

No - advance decision holds same weight as decisions made by competent person

BUT - advance decisions only apply to treatment specified (in any other treatment, best interests can be provided)

51
Q

What can going against valid and applicable advance decisions result in?

A

Claims for battery or criminal charges for assault

52
Q

When expressing the wish FOR certain treatments in advance decisions, does this have to be followed?

A

No (unlike refusal for treatment)

53
Q

What happens when there is doubt about the validity or applicability of an advance decision?

A

Can be sent to court for ruling

54
Q

Whilst a ruling is awaited after an advance decision has been sent to court, is the doctor able to keep treating the patient?

A

Yes - can treat to maintain life or prevent deterioration

55
Q

Will a doctor be prosecuted if they provide treatment because they DO NOT KNOW there is an advance decision?

A

No

56
Q

Will a doctor be prosecuted if they provide treatment because they are NOT SATISFIED that an advance decision is valid/applicable?

A

No

57
Q

If an advance decision is found not to be valid or applicable, can it be ignored?

A

No - doctor must still take it into account when deciding what is in best interests of patient

58
Q

If the advance decision is found to be valid and applicable, must the doctor comply with it?

A

Yes - failure to comply is an offence under the MCA

59
Q

What is the only circumstance in which a doctor does not have to comply with a valid and applicable advance decision?

A

When they have a CONSCIENTIOUS OBJECTION to withholding life-sustaining treatment.

If this is the case they should get another doctor to take over.

Medical Law and Ethics (5 decks)

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