OMED 1399 - Ethical, Legal and Behavioural Aspects of Paramedic Practice

Question 1

What is meant by Ethics?

Answer 1

At its Simplest, Ethics is a System of Moral Principles. They affect how People make decisions and lead their Lives. Ethics is Concerned with what for Individuals and Society and is also described as Moral Philosophy.
Ethics covers the Following Dilemmas:
- How to live a Good Life
- Our Rights and Responsibilities
- The Language of Right and Wrong
- Moral Decisions - What is Good and Bad?
Our Concept of Ethics. have been Derived from Religions, Philosophies and Cultures. They Infuse Debates on Topics like Abortion, Human Rights and Professional Conduct.
Ethics is a Study of What are Good and Bad ends to pursue in Life and What is Right and Wrong to do i’m the Conduct of Life. It is therefore, Above all, a Practical Discipline. It’s Primary Aim is to Determine how one ought to Live and What Actions one ought to do in the Conduct of One life.

Question 2

Why do Paramedics need to Understand Ethics?

Answer 2

To Learn the Skills of Ethical Analysis essential to making Moral Choices.
To Raise sensitivities to Ethical Issues in Everyday Clinical Practice.
To Enhance Critical Reflection on One’s Personal Values and Obligations as a Paramedic.
To Identify the Substantive Ethical Assumptions underlying Clinical Decisions.

Question 3

What are the Three Branches of Ethics?

Answer 3

Metaethics
Normative Ethics
Applied Ethics

Question 4

What is Meta Ethics?

Answer 4

Meta Ethics is concerned with what we mean we use words like ‘Good’ ‘Bad’ ‘Right’ ‘Wrong’.
It is not a Normative System of Ethics - It’s does not tell us what we can and cant do.

Question 5

What is Meant by Normative Ethics?

Answer 5

In Normative Ethics there are different Theories as to how Criteria of Moral Conduct should be Defined. The Three Main theories can be Sketched as Follows:
1. Deontological i.e. Duty Theories locate the basis of Morality on Specific, Foundational Principles of Duty and Obligation. These Principles are Binding regardless of the Consequences that acting on their basis might bring.
2. Consequentialist Theories on the other hand Determine the Vaue of an Action of the Grounds of a Costbenefit Analysis of its Consequences. If the Positive Consequences outweigh the Negative ones then the Action is Morally Proper.
3. Virtue theories focus on a given set of Rules like ‘do not steal’ etc. But instead of Defining them merely as obligatory duties, the Emphasis lies on the Individual to develop good habits of Character Based on these Rules (and Avoid Vices). Thus Virtue theory Emphasises Moral Education.

Question 6

What is Meant by Applied Ethics?

Answer 6

Also called Practical Ethics, is the application of Ethics to Real-world problems. Practical Ethics attempts to Answer the question of How people should act in Specific Situations.
For Example, is it Morally Permissible for a doctor to engage in Mercy Killing when a Terminal Cancer Patient begs to be put out of there misery?
Medical Ethics, Business Ethics, and the like are all branches of Applied Ethics.

Question 7

What is Meant by Metaethics?

Answer 7

Is the Study of How we engage in Ethics. A Meta Ethicist will Comment on the Meaning and Appropriateness of Ethical Language.
When we say something is morally good, what do we mean?
If we say that Euthanasia is Morally Wrong is a true statement, what makes it true?
If Ethics is fundamentally concerned with good behaviour, it would seem desirable to understand what exactly “good’ amounts to.
Can we Define what good, bad, right or wrong mean?
Could we measure good Completely and Accurately?
If you say ‘Murder is Wrong’ are you trying to state a fact about Murder. Essentially you are saying that it has the property of being wrong. This Statement has no Moral Value Attatched. It is Stated as a Fact.
Conversely, you could say that the Statement ‘Murder is Wrong’ is an expression of Emotion or Attitude. It is not a Factual Statement.
It is Wrong to Cheat? Can you prove it is wrong to cheat? If you say it is wrong to Cheat are you not just showing a dislike of Cheats. In this Example is the Statement a Personal Preference rather than a Fact?

Question 8

What is Meant by Normative Ethics?

Answer 8

Normative Ethics is the Study of Ethical Behaviour and is the Branch of Ethics that Investigates the Questions that arise regarding how one ought to act in a moral sense.
It looks at Moral Principals and Rules that determine which actions are right and which are wrong, which are good or bad.
Normative Ethics is Split into 3 Main Categories:
Consequentialism
Deontology
Virtue Ethics.

Question 9

What is Consequentialism?

Answer 9

Focuses on Consequences of Actions.
Type of Normative Ethical Theory which States that the Moral Quality of an Action is Completely Determined by its Consequences and Nothing else.
Judges whether an act is right or wrong by what its consequences are. An Action that brings about more benefit than harm is good, while an action that causes more harm that benefit is not.
Egoism as a normative argument tells us that we should be acting in our Interests, as this is the only way that overall welfare can be improved. If everyone acts in their Own self-interests, then Society will become more Efficient, which will be Everyone’s Interest. It is therefore morally right to Pursue one’s Self-Interest.

Question 10

What is Deontology?

Answer 10

Focuses of Duties.

Question 11

What is Virtue Ethics?

Answer 11

Focus on Character.

Question 12

What is Meant by Egoism?

Answer 12

Describes Human Nature as Self-Centred. In its Strongest Form, it argues that individuals only ever act in their own Self-Interest. Even where they appear to be acting in others’ Interests, descriptive egoism explains that the person is really Motivated by their own Self Interest disguised by arguments (Rationalisations) of doing one’s duty or Helping Others.
Our Motivation behind doing good deeds may be to make ourselves feel good; to make ourselves look good in the eyes of others; or because we believe that, by helping others, others will help us. Even if we donate money to Charity anonymously we may still only really do this because it makes us feel good about ourselves. In Contrast, Egoism as a normative argument tells us that we should be acting in our own Interests, as this is the only way that overall welfare can be improved.
According to Hobbes, Egoism is someone, who only acts in their own Interests. Even if that person Claims that they did Something for Someone they are not telling the truth which is, they did it for their own benefit.
Egoism can be Mistaken for being Selfish, but they are Distinct. Is an Identification of an Ethical Theory of Criteria while being Selfish is Plainly a Character Trait. Is the way Humans live life and Selfishness is one’s personality. Being Selfish is what a Person is Acting like while being an Egoist is what a Person is.

Question 13

What is Utilitarianism?

Answer 13

Theory that says that you should decide what you do in order to provide the most Pleasure and the Least pain in a Situation.
Therefore Hedonistic - Centred around pleasure.
Initially put forward by Jeremy Bentham and then a Revised version was put Forward by his Student John Stuart Mill.

Question 14

What does Bentham State?

Answer 14

‘Nature has placed mankind under the Governance of Two Sovereign Masters, Pain and Pleasure. It is for them alone to Point out what we ought to do as well as to Determine what we shall do’.
(Bentham, Introduction to the Principles of Moral Legislation, 1789).

Act Utilitarianism treats actions Singularly, with an action being either right or wrong depending on the expected Welfare change as a result of the Action - if Welfare was to Improve and more Pleasure than Pain is caused, then the action is morally the right thing to do, if Welfare would fall and more Pain than Pleasure is caused, then the Action is Morally Wrong
He said we need to Consider seven different factors, his Hedonic Calculus or the Felicific Calculus.
1. Intensity (How great the Pleasures/Pain will be)
2. Duration (How long the Pleasures/Pain will be)
3. Certainty (How likely Certain Outcomes are)
4. Propinquity (How near to you the Pleasures/Pain will be - How much it affects you Personally)
5. Fecundity (How Likely the Pleasures/Pain will be Followed by Similar Pleasures / Pain)
6. Purity (How Likely the Pleasures / Pains will be followed by Opposite Types of Pleasures / Pain)
7. Extent (How many People will be Affected by it)

Question 15

What does John Stuart Mill Argue?

Answer 15

(1806 - 1873) was uncomfortable with some of the Implications of Bentham’s Utilitarianism. He Suggested that Utilitarian Principles could be used to make ‘Rules of Thumb’ to live by. He took a Qualitative Approach - Some Pleasures are more Valuable than Others.
Mill Felt that we should aim not for Pleasure but for Happiness - General Happiness of Society.
Mill thought that Pleasure and Pain should not be Measured by its Quantity (as Bentham’s Hedonic Calculus showed). It should Instead be Measured by its Quality (Qualitative Approach). Led him to Think about the Quality of Pleasure that existed. He Realised that we could have Higher pleasures and Lower pleasures.
Higher Pleasures - Intellectual Pleasure E.g. Reading a good book, going to the theatre.
Lower Pleasures - Sensual/Physical Pleasure e.g. Food, Drink, Sex.
The Higher the Goodness, the more Pleasure will come from it. So, Reading a book or other higher Pleasures involving the Mind would be far more superior and would supersede the Lower Pleasures of Food, Drink, Sleep, Sex etc.

Question 16

Bentham vs Mill

Answer 16

Mill differed from Bentham in that he Emphasised the Long-term Goals rather than the Immediate Pleasures. Therefore, Short term pain was acceptable to gain long term pleasures. Instead of losing value over time pleasure could Increase.
Mill’s final disagreement and departure from Bentham demonstrated itself in the Introduction of rule Utilitarianism. He Argued that Rather than Working out each act and its Moral Value humans should Stick to General-held Moral rules e.g. do not steal, lie, murder etc. As Society itself would benefit directly from this and so increase overall happiness.
Act Utilitarianism: Morally involves examining the Pleasurable and Painful consequences of our Individual Actions.
Rule Utilitarianism: Morally involves examining the Pleasurable and Painful Consequences of the Moral Rules that we Adopt.

Question 17

What is Meant by Deontology?

Answer 17

Derived from the Greek word deon, Meaning ‘Duty’. It is concerned with right action - in other world, with doing the right thing simply because it is the right thing to do.
According to Immanuel Kant (1724-1804), a German Philosopher, Deontology is an Ethical Approach Centred on Rules and Professional Duties.
All Deontological Ethics Theories are non-Consequentialist. This means that they place the Emphasis on the Decision or Action itself - on the Motivations, Principles, or Ideals underlying the Decision or Action - Rather than being Concerned with the Outcomes or Consequences of that Decision or Action.
Unlike consequentialism, which judges actions by their Results, Deontology doesn’t require weighing the costs and benefits of a Situation. This Avoids subjectivity and Uncertainty because you only have to follow set rules.

Question 18

What is Hypothetical Imperative?

Answer 18

Moral Command that is Conditional on Personal desire or motive. In other words, a Hypothetical imperative is a command you should follow if you want something. They tell us how to act in order to achieve a specific goal. For Example, if you want to get a good grade, you should study, Similarly, if you want to earn money, you should get a job. Moreover, hypothetical imperatives are imperatives based on Desire or inclination, and their commandment of reason applies only conditionally.

Question 19

What is Categorical Imperative?

Answer 19

Commands you must Follow, Regardless of your Desires and Motives. Moreover, these are Moral Obligations derived from Pure Reason. As Morals, these Imperatives are Binding on Everyone.
Kant believed that Certain types of Action (Incuding Murder, Theft and Lying) were absolutely Prohibited, even in Cares where the Action would bring about more Happiness than the Alternative. For Kantians, there Two Questions to ask before they Decide to Act (i) Will Everyone Acts as i Propose to Act? If the Answer is No, then we must not perform the Action. (ii) Does my Action Respect the Goals of Human Beings rather than merely using them for my Own Purposes? Again if the Answer is no, then we must not Perform the Action. (Kant believed that these Questions were Equivalent).
Categorical Imperatives command Unconditionally. E.g. Don’t Cheat on Your Taxes. Even if you want to Cheat doing so would Serve your Interests, you may not Cheat.

Question 20

What is the Differences between Hypothetical Imperative and Categorical Imperative?

Answer 20

Hypothetical - Moral Commands that are Conditional on Personal Desire or Motive.
A Command you should follow if you want something: thus, it tells you how to Achieve a Specific Goal. An Imperative Based on Desire of Inclination. Teach us how to Reach a Specific Goal.

Categorical - Commands you Must Follow Irrespective of your Desires and Motives. An Absolute Moral Obligation derived from Pure Reason. An Imperative based on Reason Alone. Help us to Evaluate our Moral Actions and to make Moral Judgements.

Question 21

What is Meant by Virtual Ethics?

Answer 21

Virtue Ethics - A Moral Theory that Focuses on the Development of Virtuous Character.
Virtues - Engrained Dispositions to act by Standards of Excellence. In Virtue Ethics, Character is the key to the Moral life, for it is from a Virtuous Character that Moral Conduct and Values naturally Arise.
Person Based rather Action Based: it looks at the Virtue or Moral Character of the Person carrying out an Action, Rather than at Ethical Duties and Rules, or the Consequences of Particular Actions. Not Only deals with the Rightness or Wrongness of Individual Actions, but it also Provides Guidance as to the Sort of Characteristics and Behaviours a good person will Seek to Achieve.
In that way, Virtue Ethics is Concerned with the Whole of a Person’s life, Rather than Particular Episodes or Actions.
A Good Person is Someone who Lives Virtuously - Who Possesses and Lives the Virtues.

Question 22

What does Virtue Ethics Teach?

Answer 22

An Action is only Right if it is an Action that a Virtuous Person would Carry out in the Same Circumstances.
A Virtuous Person is a Person who Acts Virtuously.
A Person acts Virtuously if they Possess and live by the Virtues.
A Virtue is a Moral Characteristic that a Person needs to Live Well.
The Traditional List of Cardinal Virtues are:
- Prudence
- Justice
- Fortitude / Bravery
- Temperance

Question 23

What is Applied Ethics?

Answer 23

Branch of Ethics devoted to the Treatment of Moral Problems, Practices and Policies in Personal Life, Professions, Technology and Government.
Applied Ethics is the Application of Ethics to Real-World Problems. Applied Ethics attempts to Answer the Question of how People should act in Specific Situations. For Example, is it Ethical for a Business Owner to Bluff during Negotiations with another Company? Or is it Morally Permissible for a Doctor to Engage in Mercy killing when a Terminal Cancer Patient begs to be Put out of her Misery?
Medical Ethics, Business Ethics, Engineering Ethics and the Like are all Branches of Applied Ethics.
Deals with Difficult Moral Questions and Controversial Moral Issues that People face in their Lives. It Deals with Moral Issues Regarding:
- Abortion
- Euthanasia
- Giving to the Poor
- Sex before Marriage
- Death
- War Tactics
- Censorship
Hare’s View of Applied Ethics as the Application of a Theory to Practical corresponds to the way in which Practical Ethics is sometimes Introduced to Students here are the Ready-made Standard Theories - Utilitarianism, Deontology, Virtue Theory.
In the Case of Applied Ethics, One need not always Agree on a Particular Moral Theory to Answer the Particular Moral Dilemma, Instead every Moral Dilemma can be Understood by Reviewing and Analysing the Harms and Facts related to that Specific Dilemma.

Question 24

What is Principlism?

Answer 24

Applied Ethics Approach to the Examination of Moral Dilemmas that is Based upon the Application of Certain Ethical Principles. This Approach to Ethical Decisions-Making has been Adopted Enthusiastically in many Different Professionals Fields, Largely because it Sidesteps Complex Debates in Moral Philosophy at the Theoretical Level.
The Origins of Principlism, as we know it today are to be found in two Influental Publications from the Late 1970s in the United States.
- First Advocated by the National Commission for the Protection of Human Subjects of Biomedical and Behavioural Research in a Document called the ‘Belmont Report’.
- It was Advocated for the Second time by Tom Beauchamp and James Childress in their book Principles of Biomedical Ethics (1979), in which they State that the Following Four Prima Facie Principles lie at the Core of Moral Reasoning in Health Care: Respect for Autonomy, Beneficence, Non-Maleficence, and Justice. In the Opinion of Beauchamp and Childress, these four principles are part of a ‘Common Morality’ an Approach that ‘Takes its basic Premises Directly from the Morality shared by the Members of Society - That is, Unphilosophical Common Sense and Tradition.

Question 25

What does Principlism Aim?

Answer 25

Aims to Provide a Framework to help those Working in Medicine both to Identify Moral Problems and to Make Decision about what to do.
Cornerstone of Bioethics which Focuses on Ethical and Legal Controversies arising from the Delivery of Healthcare, the Practice of Medicine and on Biomedical Research.
Forms part of Applied Ethics which is Discipline of Philosophy that attempts to Apply Ethical Theory to Real Life Situation. Applied Ethics is the Study of the use of Ethical Values. Tries to Resolve the Controversial and Moral Issues such as Animal Rights, Environmental Concerns, Medical Ethics, Bioethics etc.

Question 26

What is the Autonomy in Principlism and Autonomy in General?

Answer 26

WHAT IS MEANT BY AUTONOMY?
In Medical Practice, Autonomy is Usually Expressed as the Right of Competent Adults to make Informed Decisions about their own Medical Care. Principle underlies the Requirements to seek the Consent or Informed agreement of the PT before any Investigation or Treatment takes place. Principle is perhaps seen as its most Forcible when PT exercise their Autonomy by Refusing Life-Sustaining Treatment.
WHAT THE LAW SAYS?
An Adult PT who suffers from no Mental Incapacity has an Absolute Right to Choose whether to Consent to Medical Treatment. This right of Choice is not Limited to Decisions which might regard as Sensible. Exists not with Standing that the Reasons for making the Choice are Rational, Irrational, Unknown or Even non-Existent.

Question 27

What are the Conditions for Autonomy?

Answer 27

Two Conditions are Ordinarily Required before a Decision can be Regarded as Autonomous. The Individual must have the Relevant Internal Capacities for Self-Government and must be Free from External Constraints. In Medical Context, a Decision is Ordinarily Regarded as Autonomous where the Individual has the Capacity to make the Relevant Decision, has Sufficient Information to make the Decision and does so Voluntarily.

Question 28

What is Paternalism?

Answer 28

Medical Paternalism is a Set of Attitudes and Practices in which a Physician Determines that a PT’s wishes or choices should not be Honoured (Stone, 1999).
In the 18th Century, Medical Paternalism was Considered necessary. It was Believed that only a Doctor could Properly understand Symptoms and Draw useful COnclusions. During the Period, the Prevailing Consensus was that Disease was nothing more than Symptoms. This Meant that the Individual History of the PT didn’t matter in Providing Care, so the PT him or herself was Irrelevant in the Medical Encounter. Thus, it was deemed Necessary that Physicians make Decisions for Patient. The Hippocrates oath Requires that ‘I will follow that System or Regimen which according to my Ability and Judgement I Consider for the Benefit of My Patients. Says nothing about what PTs say they want, not Deceiving them, Consulting them about their Wishes, Explaining Likely Consequences, Good or Bad, or Describing Alternative Courses of Action.

Question 29

What are the Three Models of Paternalism?

Answer 29

In 1956, Szasz and Hollander Introduced Three Models of Paternalism to the Medical COmmunity, thereby Legitimizinf the View that Doctors did not Necessarily have to Dominate PTs. The Models are as Follows:
Activity - Passivity
Guidance - Cooperation
Mutual Participation

Activity: Refers to the Traditional version of Paternalism, in which the Doctor Treats the PT as one who cannot or should not make Decisions. This Relationship is like that of a Parent and Child. Treatment is Performed ‘Irrespective of the Patients Contribution and Regardless of Outcome’. This Model is Considered justified in EMergency Situations in Which there is no time to Consider the PTS Preferences or Contributes.
Guidance - Cooperation is a Relationship used in More Long-Term Situations. Doctor Provides Instructions to the PT, to which the PT is expected to Comply. Name comes from the Expectation that the Physician will guide the PT, who will Cooperate, but who Retains their Individuality.
Mutual Participation - Involves the Physician Making it Clear that he or she is not Infallible and does not always know what is best. This model is more of a Partnership, in which the Doctor helps the PT to help him or Herself. This Model is often Employed in Cases of Chronic Disease or Pain, in which the PT can have a Higher Degree of Freedom and be more Independent of the Doctor.

Question 30

What are the Decisions where Autonomy is Lacking?

Answer 30

Given that there is a Strong Obligation to Respect the Decisions of Autonomous Adults - in Relation to Medical Treatment, the only Possible Exeption is the Provision of Compulsory Treatment under Mental Health Legislation - How should we Proceed when the Condition for Autonomous Decision-Making are not met?
Much will Depend on the Reasons why the Conditions are Lacking, if someone is being Coerced into making a Decision, then it cannot be said to be theirs and should not be Respected. In Reality, Coercion is not always easy to Detect. A Young Woman who visits a GP with her Partner for a Termination of Pregnancy may, for example, be under Pressure to Proceed. If a Doctor had Concerns about Coercion, good practice would involve Spending some time alone with the PT in order to Confirm that Decision is Genuinely hers.

Question 31

How are Decisions made by Patients?

Answer 31

Where PTs lack the Capacity to make a Decision, it Follows Necessarily that Decisions, must be made on their Behalf. Very young Children Ordinarily have Majority of Decisions made by Parents and Carers.
Where Adults lack Capacity, Health Care decisions are Ordinarily made by the Health Professional in Overall Change of their Care, although Adults can Appoint someone to make Decisions on their Behalf
In Practice, Decisions relating to Incapacitated Adults are Closely Regulated by Law.

Question 32

What is the Moral Problem?

Answer 32

Should someone Suffering from Severe Anorexia be Forcibly Fed? We have seen that a Competent Adult can Refuse Medical Treatment even if it will Result in their Death. Why then should an Adult of Ordinary Intelligence not have a Decision to Refuse Food Respected.
Justification is, usually, that the Anorexia has Undermined the Ability to make an Autonomous Decision. The Decision to Refuse Food, it is said, is not Authentically theirs, rather it Springs from the Mental Disorder that has the Adult in its Grip. Force feeding could be Described as a Paternalistic Intervention designed to Facilitate Further Treatment, with the Intention of Resurrecting the Ability to make Authentically Autonomous Decisions.

Question 33

What is the Mental Health Capacity Act 2005?

Answer 33

Defines Capacity and How it is Tested.
Provides the Legal Framework for Making Decisions on Behalf of a Person who lacks Capacity.
Provides the Procedural Requirements for Advance and Delegated Decision Making.
Came into Power in 2007, and Provides the Statutory Framework for Assessing Mental Capacity and Guides the Action which should be taken Dealing with Patients who have Impaired Capacity.
The Legislation also Creates Criminal Offences Relating to ill-Treatment or Wilful Neglect of a Person lacking Capacity.
Legislation Applies to all Decision, not just Significant or Medical Ones. The MCA also Provides the Statutory Framework for Advance and Delegated Decision Making - That is Advance Decisions and Lasting Powers of Attorney.
WHO DOES IT APPLY TO?
People aged 16 Years and over in England & Wales.
Exceptions for 16 and 17 Year olds:
- Make an Advance Decision
- Nominate a Lasting Power of Attorney.

Question 34

What Code of Practice?

Answer 34

Has a Statutory Force, this Means that you have a Legal Duty to take Note of the Code. Code essentially is Guidance; you do not have to Comply with it - However you must be able to Justify any Departure from it a Court, Tribunal or Professional Hearing.

Question 35

What are the Key Principles of the Mental Health Act?

Answer 35

Presume the Person has Capacity.
Support the Person in their Decision-Making.
Do not Assume the Person lacks Capacity simply because they are making an Unwise Decision.
Decisions must be made in the Person’s Best Interests.
The Least Restrictive Option should be Used.

Question 36

What is the First Principle of the Mental Health Act?

Answer 36

Assume the Person has Capacity.
A Person must be Assumed to have Capacity, Unless it is Established that they lack Capacity.

Question 37

What is the Second Principle of the Mental Health Act 2005?

Answer 37

Support the Person in their Own Decision Making.

Question 38

What is the Third Principle of the Mental Capacity Act 2005?

Answer 38

Do not Assume the Person Lacks Capacity Simply because they are making an Unwise Decision.
A Person is not to be Treated as Unable to make a Decision merely because he Makes an Unwise Decision.

Question 39

What is the Fourth Principle of the Mental Capacity Act 2005?

Answer 39

Decisions must be Made in the Person’s Best Interests.
Starting Point - All the Issues that are Most Relevant to the Decision in Question.

Question 40

What is the Best Interest Checklist?

Answer 40

Encourage Participation
Identify all the Relevant Circumstances
Find out the Person’s Views
Avoid Discrimination
Assess whether the Person might Regain Capacity - Consider whether the Person is Likely to Regain Capacity (After receiving Medical Treatment or Further Support). If so, Can the Decision wait until then, so the Person can be in Control?
Decisions Concerns Life Sustaining Treatments
Consult Others - People who are Important to the Person, may need to Involve an IMCA if person meets Criteria.
Avoid Restricting the Person’s Rights.

Question 41

What is the Fifth Principle of the Mental Capacity Act 2005?

Answer 41

The Least Restrictive Option should be Used.
Before the Act is done, or Decision is made, regard must be had to whether the Purpose for which it is Needed can be Achieved as Effectively in a Way that is Less Restrictive of the Person’s rights and Freedom of Action.

Question 42

What is the Two Stage Assessment of Capacity?

Answer 42

Act Defibes a Lack of Capacity as:
At the Time a Decision needs to be Made, a Person is Unable to make a Decision for themselves because of an Impairment or a Disturbanve in the Functioning of their Mind or Brain.
Under the Act Capacity is Always time and Decision Specific.
- Some People may be Unable to make one Decsions but Retain Capacity for Other Decisions.
- Capacity can Fluctate and Change over Time.
Start with a Blank Canvass and the Assumption that the Person has Capacity to make the Decision.
Think about the Information and any support the Person will need to Maximise the Opportunity for them to make a Decision for themselves.

Question 43

What are the Two Stages of the Assessment of Capacity?

Answer 43

1. Diagnostic Test - Is there an Impairment or a Disturbance in the Functioning in the Mind or the Brain, that is Affecting the Person’s Ability to make a Decision.
   For Example: Mental Illness, Cognitive Impairment such as Dementia or Alzheimer’s Disease, Learning Disability, any Physical or Medical Conditions that Cause Confusion, Drowsiness or Loss of Consciousness, Delirium, Acquired Brain Injury etc.
2. The Functional Test - A Person is unable to Make a Decision if they Cannot do of any one or more of the Following:
3. Understand the Information
4. Retain the Information
5. Use and Weigh up the Information as Part of the Decision Making Process.
6. Communicate their Decision.
   Remember stages 1 & 2 are Part of the Same Assessment, you must be able to show that the Person Lacks Capacity in the Functional Test, because of the Impairment Identified in the Diagnostic Test. The Outcome of the Assessment is that the Person will Either:
   - Have Capacity to make the Decision - in which Case we must Obtain the Patient’s Consent and Respect their Decision. OR
   - Lack Capacity to make the Decision, therefore they are unable to give Informed Consent and Decisions are made in their Best Interests.
   Consider if the Person’s Capacity is Fluctuating and whether they could Regain Capacity in the Future - If Possible Delay the Decision until the Person can make the Decision themselves.

Question 44

What is the Balance of Probability?

Answer 44

At all Times, the Burden of Proof is ‘on the Balance of Probabilities’. If the Diagnostic Test is met, and a Single Element of the Functional Test is met this Indicates the Patient Lacks Capacity. You should then make a Best Interests Decision.

Question 45

What is Fluctuating Capacity?

Answer 45

Incapacity can be Temporary e.g. During a Epileptic Fit; or Fluctuating e.g. a Dementia Patient who has Greater Capacity in the Morning and when her Sister is Present.
Mental Capacity is the Ability to make a Particular Decision at the Time it needs to be Made.

Question 46

What is Meant by the Use of Restraint?

Answer 46

You must Reasonably Believe that it is Necessary to Restrain in Order to Prevent Harm to the Person.
It must be a Proportionate Response to the Likelihood of Harm and the Seriousness of that Harm.
Is there a Risk of Harm?
Is Restraint Needed to Prevent that Harm?
If so:
Is Restraining the Person a Proportionate Course of Action, taking into Consideration how Likely that Harm is, and How Serious the Harm is?
If Restraint takes place it must be:
- The Least Restriction Possible
- For the Shortest Possible Time.
Restraint of Any kind should only ever be used as a Last Resort when no other Option is Available and should employ the Least Restrictive Option using the Minimum Amount of Force for the Shortest Time Possible. Failure to do so may Constitute a Criminal Offence for which Staff Member can be Prosecuted.
Restraint can only be used Legally in two Sets of Circumstances. The First is where there is an Immediate and Present Risk of Harm to the Person or Others. For Example, if a Pan of Boiling Water Fell, it would be Quite Legal to use Physical Force to Pull Someone out of the Way. It would not be Legal to use Force to Remove them from the Kitchen in case a Pan was to Fall.
The Second set of Circumstances where Restrain is Legal is when Someone Lacks Capacity and where it is Felt that Restraint is Necessary to Prevent the Person from being Harmed or Harming Others. A Description of the Restrain to be Used and the Circumstances in which it can be Used to Documented in the Persons support Plan and Must be the Result of a Best Interest Decision, using a Positive Risk Assessment.
Restraint should not cause injury or Pain and should Minimise the Degree of Distress or Psychological Trauma. It should not Undermine Dignity, Humiliate or Degrade the Person.

Question 47

How to Use Restraint of Capacitated Adults?

Answer 47

The Movements or Actions of Capacitated Adults cannot Generally be Restricted without their Full Consent. There are times though when they can be Restrained and this is when it Appears someone ma be going to Harm Another Person or Seriously Damage Property. They are Likely to be Potentially Committing a Criminal Offence. Social and Health Care Staff may need at Times to Restraint Capacitated Adult and they may do this Using Reasonable Force under the Following Circumstances:
- Threatening Harm to Another Person
- Injuring Another Person
- Causing Damage to Property
- Self Harming
In these Situations, Action can be Taken under Common Law, therefore a Capacitated Person does not have to Consent for Staff to Intervene.
Where Staff believe a Criminal Offence is or about to Occur the Police Service must be Involved.
When a Normally Capacitated Person Loses Capacity, for Example if they are Intoxicated and there is an Imminent Risk of Harm to themselves or others a Best Interest Decision must be Made at that Point for Any Interventions, they cannot at that Time Consent to.
Restraint must only be used when less Restrictive Interventions have been Tried but have Failed to Reduce the Seriousness of Harm.
Restraint must Never be Used as a Form of Punishment.

Question 48

How to Restraint Incapacitated Adults?

Answer 48

Means not being able to Consent to Actions that Others may wish to Take. There must Always be:
- An Assessment of Capacity
A Best Interest Decision which includes a Detailed Description in the Care Plan of the Type, Duration and Description of the Restriction or Restraint to be Used.

Question 49

What is Restraint under the Mental Capacity Act 2005?

Answer 49

Recognises that there are Situations in which a Patient without Capacity will need to have Restraint Employed in order to Achieve their Best Interests. Under the MCA, Restraint can mean Either the Application or Threat of Force in Order to make someone do something, or the Use of Restrictions on a Person’s Freedom of Movement in order to Prevent them from Doing Something. Some Examples of Restraint that may be Employed by Paramedics could be Physically Stopping an Intoxicated Individual from Walking into Traffic; holding the Hand of an Uncooperative Patient with Diabetes Suspected of Having a Hypoglycaemic Episode to Enable Measurements of their Blood Sugar; Strapping a Patient to a Carry Chair in order to Extricate them to the Ambulance; Removing Tablets from a Patient who is Threatening to Overdose; or Returning a Patient with Dementia who has been Missing to their Nursing Home. A Key Element of the Application of Restraint is that Whatever Form it Takes, it should only be Used to Avoid some Harm Coming to the Patient and must be Necessary in Order to Avoid some Harm. While we may be Uncomfortable with the Idea of Using Restraint, it should be Remembered that a Failure to do so, If it were to Lead to the Patient Suffering Harm, could be Constructed as Negligence.

Question 50

What is a Deprivation of Liberty Safeguard?

Answer 50

When a Person has their Freedom limited in Some way. It Occurs when:
“The Person is under Continuous Supervision and Control and is not Free to Leave, and the Person Lacks Capacity to Consent to these Arrangements”.
A Deprivation of Liberty is Common for a Person with Dementia Receiving Care who may have:
- Decisions made for them or on their Behalf
- Limitations on where they are Allowed to go
- Their Routine Decided for them.
DoLS were Inserted into the MCA to Provide Authorisation and Safeguards for Deprivation of Liberty in Care Homes and Hospitals Following the ‘Bournewood Case’
Your Liberty can only be Taken away under the Mental Capacity Act using DoLS if:
- You are 18 or Over
- You Lack Capacity to Agree to the Restrictions
- The Care Home or Hospital where you are Staying has Successfully Applied for an Authorisation from the Local Authority.
- The Deprivation of Liberty Safeguards have been Followed.
- Or where Court of Protection Grants Permission.
The Supreme Court has Concluded that it is not Within the Scope of Parental Responsibility for Parents of a 16/17 Year old to Consent to Care/Residence Arrangements which Deprive that Young Person of their Liberty.

Question 51

What are the Key Elements of the DoLS?

Answer 51

In Your Best Interest to take away your Liberty. This Means it is Necessary to Prevent harm to you and the Detention is Proportionate, Looking at how Likely you are to Suffer Harm and how Serious the Harm might be.
It has become an Unavoidable Necessity to take away your Liberty. Every Effort should be made to Prevent it from becoming a Necessity.
DoLS can only be used to Deprive you of your Liberty at a Care Home or Hospital. It cannot be used to Take you from your Home to a Care Home or Hospital - This would need an Order from the Court of Protection.

Question 52

What is the Purpose of Criminal Law?

Answer 52

To Maintain Law and Order and to Protect Society as a Whole. In Criminal Cases the CPS on Behalf of the Crown bring (Prosecute) a Case against the Accused (Defendant). Criminal Cases are Heard in Magistrates or Crown Courts. The Seriousness of the Alleged Crime determines the Level at Which the Case is Heard. More Serious Cases are Heard in the Crown Court over which a Judge Presides and a Jury of the Defendant Peers make the Decision on Guilt. The Burden of Proof is High in the Criminal Court at Beyond a Reasonable Doubt. If the Defendant is Found Guilty a Punishment is Awarded, such as a Fine or Imprisonment.

Question 53

Why does the Civil Law Exist?

Answer 53

To Uphold Rights of Individuals and Resolve Disputes (to Right Wrongs). Individuals (or Organisations) bring Claims (Hence they are known as the Claimant) against other Individuals (or Organisation) who respond (Hence they are Called the Respondent) to the Claim. One or More Judges hear the Claim and Decide if the Respondent is Liable for the Claimant’s Claim. The Burden of Proof here is much Lower than in the Criminal Court ‘On the Balance of Probabilities’ (It is more Likely than not that the Person is Liable or Not Liable). If the Respondent is found Liable the Judge will make an Order which Aims to Resolve the Dispute, Rather than a Punishment.
There is Nothing to Stop a Civil Case following a Failed Criminal Case. Examples of this Include the Omagh Bombers who were found Liable in 2009 and Ordered to pay £1.6 Million in Compensation and Damages for the 1998 Attack after being found Guilty at the Criminal Court. The Pair Successfully appealed the 2009 Verdict but were again found liable in their 2013 Retrial.

Question 54

What is the Difference Between the Civil and Criminal Law?

Answer 54

Civil Law
- Purpose to Uphold the Rights of Individuals
- Issue is Between 2 Individuals or Businesses
- High Court or County Court
- Person bringing/starting the Case = Claimant
- Defendant/Respondent found Liable or not Liable.
- Compensation or Damages (aim to put Right)
- Standard of Proof: on the Balance of Probabilities.
- Judges making Decision.
Criminal Law
- To Maintain Law and Order to Protect Society
- Case Taken on Behalf of the State (through the Police: CPS Conducts)
- Magistrates Court or Crown Court
- Person Bringing/Starting the Case = Prosecutor
- Defendant found Guilty or not Guilty (Convicted or Acquitted)
- Punishment (Fine, Prison, CSO etc)
- Standard of Proof: ‘Beyond Reasonable Doubt’
- Magistrates or Jury making Decision.