Mental capacity act

Question 1

Consent- reminder

Answer 1

• Consent is the voluntary and continuing permission of a patient to be given a particular treatment, based on sufficient knowledge of the purpose, nature, likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it. Permission given under any unfair or undue pressure is not consent
• Consent of child under 16 valid if child Gillick competent
• Child 16-17 given same rights to consent as an adult under the family law reform act 1969

Question 2

Gillick competency

Answer 2

• The Gillick case involved a health departmental circular advising doctors on the contraception of minors (for this purpose, individuals under the age of 16)
• The circular stated that the prescription of contraception was a matter for the doctors discretion, and that they could be prescribed to individuals under the age of sixteen without parental consent
• This matter was litigated beacause of an activitis, Victoria Gillick, ran an active campaign againast the policy

Question 3

Gillick competency (2)

Answer 3

• As a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed

Question 4

Refusal and children

Answer 4

• Refusal by a competent child of any age up to 18
• May be overridden by parent or court if necessary in the child’s best interest
• Child (<18) subject to the jurisdiction of the family division of the high court
  
  • NB- Jehovah’s witness, blood transfusion

Question 5

Absence of consent

Answer 5

• Liable in the tort of trespass to the person- compensation
• Battery is a form of trespass to the personal
  
  • Cull v Chance- removal of uterus permission
• Appleton v Garrett
  
  • Unnecessary dental treatment- patient didn’t need the treatment

Question 6

Human rights act and consent

Answer 6

• Article 3- no-one shall be subjected to torture or to inhuman and degrading treatment
• Article 8- Everyone has the right to respect for his home, privacy and his family life

Question 7

Capacity in adults

Answer 7

• The medical treatment of adult patients who have capacity is, within the law, reasonably straight forward as the law upholds the ethical principle of autonomy
• Section 5 of the mental capacity act 2005 allows the treatment of unconscious or incapable patients in their best interest- not always in the patients best interest to treat them
• Section 4 of the act outlines the process for determining best interests

Question 8

Kerrie Wooltorton

Answer 8

• Wooltorton was assessed to have the capacity to make the decision not to receive treatment and it was stated that if they treat her (doctors) feared that they might have been prosecuted for assault under the mental capacity act

Question 9

Best interest

Answer 9

• Take into account a person’s past and present wishes and feelings, beliefs and values which might be likely to influence the decision and any other factors which s(he) would be likely to consider if able to do so

Question 10

F v West Berkshire health authority

Answer 10

• Permission was granted by the courts to sterilise a 36- year old lady with learning difficulties who had entered into a sexual relationship with a male psychiatric patient in the same institution in which she resided
• The treatment of patients who lack capacity will now be subject to the provision of the mental capacity act 2005 which came into force in England and Wales in 2007

Question 11

Capacity

Answer 11

• For the purpose of this act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter bevsause of an impairment of or a disturbance in the functioning of the mind or brain

Question 12

Consent for patients without capacity

Answer 12

• Before the introduction of the mental capacity, it was not possible for anyone to consent on behalf of an adult patient who lacked capacity
• The presence of consent to treat is a key component of healthcare, without consent HCP risk actions in both battery and assault
• However in order for the consent to be valid, it must meet certain criteria in that the patient must have the capacity to consent, they must understand the broad nature of the proposed course of action and the consent must be given voluntarily

Question 13

Re C- Refusal of treatment

Answer 13

• For consent to be valid, the patient must
  
  • Firstly comprehend and retain the treatment information
  • Secondly, believe it and
  • Thirdly weigh the information in the balance to arrive at a choice
• These 3 stages, along with a 4th (the ability of the patient to communicate their treatment choice; not included in the Re C) remain and form section 3(1) of the mental capacity act as the test for a patients ability to make decisions
• The act is effectively providing a statutory basis for the common law previously developed in this area
• This is the checklist for capacity

Question 14

Mental capacity act in health care

Answer 14

• The act contains 2 provisions which are, on the face of it, in place to allow for individuals who may lose capacity to direct future medical treatment
• Sec 9 of the act introduces into law the concept of the donee of a lasting power of attorney for health and welfare- this is the only time one adult can consent for another adult
• Sec 24-26 of the act outline the provision of advance decision
• We also assume a patient has capacity until proven they lack it

Question 15

Common-law advanced directives

Answer 15

• Re C (refusal of treatment)
  
  • A paranoid schizophrenic patient detained in Broadmoor refused surgery for a gangrenous leg
• Re AK
  
  • A paralysed patient, through eye-blinking, communicated their advanced wishes for artificial ventilation to stop once a degenerative neuromuscular disease prevented communication
• R v Collins
  
  • The court allowed the force-feeding of the Moors murderer Ian Brady when he was on hunger strike

Question 16

Advanced decisions

Answer 16

• There are clear differences between Advance Decisions (both oral and written) and a contemporaneous decision which is more often than not based on a discussion of the situation and a 2 what information flow
• The act states that nay advanced decision must be valid and applicable
  
  • So how easy is it to provide an applicable refusal of treatment while still competent when it may not be clear what treatment you would be offered should your condition deteriorate
  • Too specific a directive would only apply to certain treatments, leaving other treatment options to be used in the patient’s best interests. Conversely, to general, a directive would risk not being applicable to any situation

Question 17

Donees of lasting power of attorney (1)

Answer 17

• Prior to 1985 the only types of powers of attorney which existed were termed ordinary powers of attorney and were governed by the powers of attorney 1971
  
  • This act enabled individuals to delegate power over property and financial affairs but lapsed automatically if the donor lost capacity
• The enduring powers of attorney 1985 added additional provisions with the introduction of enduring powers of attorney alongside the ordinary powers of attorney from the powers of attorney act 1971
  
  • The key difference of EPA when compared to an ordinary attorney was that EPAs did not automatically revoke upon loss of capacity of the donor

Question 18

Donees of lasting power of attorney

Answer 18

• Under sec9 of the mental capacity act, adults with the capacity are able to nominate one or more treatment proxies (in relation to healthcare as previously discussed the act covers more than just healthcare treatment) to make decisions for the individual in the event of the loss of capacity
• This decision making ability extends to decisions surrounding life-sustaining treatment so long as there is a clear statement to this effect within the documentation
• Any LPA must be registered with the office of the public guardian before it can be used

Question 19

Donees of lasting power of attorney (3)

Answer 19

• This is in some ways a more radical part of the act than the one relating to advance decision as it could be argued that advanced directives were effectively already in place and supported by the common law
• The key change is that prior to the introduction of the mental capacity act, no-one could consent (or withhold consent) for medical treatment on behalf of another adult
• However, the donees’ power is subject to the provisions of the best interests requirements in sec 4 of the act; ultimately resulting in the donee having to act in what is perceived to be the patient’s best interests at the time