Will the Mental Capacity Act restrict my practice? - Dr ...


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Will the Mental Capacity Act restrict my practice? - Dr ...

  1. 1. Will the Mental Capacity Act restrict my practice? Dr Stuart White, BSc, FRCA, MA Consultant Anaesthetist, Brighton and Sussex University Hospitals NHST Honorary Senior Lecturer, Brighton and Sussex Medical School
  2. 2. No … … and yes!
  3. 3. Will the Mental Capacity Act restrict my practice? NO - MCA is basically a statutory codification of the common law YES - age change - LPAs/CADs/IMCAs - (living wills) - research
  4. 4. Common law of consent Legally valid consent/refusal: Voluntary Informed Competent … or …
  5. 5. Competence ReC [1994]: When making a decision about treatment, a competent patient: understands the information retains the information ‘weighs it in the balance’
  6. 6. Some maxims … • A question of fact (!) – medical (court) decision • No-one may consent to medical treatment on behalf of a competent adult (18+)
  7. 7. Competent adults • may refuse all treatment even if refusal endangers their life • may make an irrational decision
  8. 8. Incompetent adults • 18+ • Temporary or permanent • In ITU: - illness - anxiety - pain - drugs - communication problems (language, ETT)
  9. 9. Temporary factors LJ Butler-Sloss in ReMB: ‘… temporary factors such as confusion, shock, fatigue, pain or drugs might completely erode capacity but only if such factors were operating to such a degree that the ability to decide was absent.’
  10. 10. So… … if incompetent adults can’t consent, what is the legal justification for their treatment?
  11. 11. ‘Best interests’ • ReF(mental patient: sterilisation) [1990] • F, 36, mentally handicapped • hospital sought declaration that it would be lawful, and in F’s best interests, to sterilise her • upheld by HL
  12. 12. ‘Best interests’ Treatment of incompetent adults is lawful if the treatment proposed is: NECESSARY + in the patient’s BEST INTERESTS
  13. 13. ‘Best interests’ • ‘best interests’ is not the same as ‘medical best interests’ • the doctors decide what is in the patients best interests (but should be prepared to justify their decision to the courts) • the assent of relatives should be sought
  14. 14. So, what’s new about the Mental Capacity Act, 2005?
  15. 15. Mental Capacity Act, 2005 • Law Commission Mental Incapacity (1995) • Lord Chancellor’s department - Who Decides (1997), Making Decisions (1998) • DCA Mental Incapacity Bill (2003) • Aims - to ‘empower and protect people who cannot make decisions for themselves’ - more than current common law
  16. 16. Protect from whom?
  17. 17. • Royal Assent April 2005 • Enforced 1st October, 2007
  18. 18. Mental Capacity Act, 2005 5 core principles: • over 16s have capacity unless clearly incapable • should be helped to express capacity • capable patients can make unwise decisions • incapable patients are treated in their best interests • minimum necessary intervention if acting in the best interests
  19. 19. … so … • All over 16s have capacity unless they obviously don’t … • … if they don’t, you give the minimum necessary treatment, in their best interests … • … but only after you’ve given them a chance to show they have capacity
  20. 20. ‘Best interests’ More than ‘medical best interests’: • non-discriminatory (age, pathology) • is recovery of competence likely? • wishes of patient (involve relatives) • withdrawal must not intend to cause death • restraint: necessary + proportionate
  21. 21. LPAs, CADs, IMCAs LPAs = (donees of) ‘Lasting Powers of Attorney’ • appointed by competent patients • can make future healthcare decisions in best interests if patient lacks capacity • including end-of-life decisions if stipulated • registered with the new Office of the Public Guardian in order to be valid
  22. 22. LPAs, CADs, IMCAs CADs = Court-appointed deputies • appointed by new Court of Protection • if no LPA/permanently incapacitant • can make judgments regarding treatment decisions in incapable over 16s • but not including end-of-life decisions
  23. 23. LPAs, CADs, IMCAs IMCA = independent mental capacity advocates • support decision making by LPAs/CADs/doctors/courts • but cannot actually make decisions about medical treatment
  24. 24. Advance directives (anticipatory decisions, living wills) • have been common law since ReAK (2001) • Legally valid if: - refusal of treatment clearly established - patient competent at the time of the decision - patient adequately informed at time of decision - decision made voluntarily - intended to apply in circumstances which arise • cannot demand treatment (Burke)
  25. 25. Advanced decisions and MCA • as for common law • may be superceded by LPAs • doctors must make efforts to ascertain the existence of an AD
  26. 26. Research • has never been regulated by statute in UK • MCA - all ‘intrusive’ research involving incompetent over 16s must have REC approval
  27. 27. Research Research must: • aim to alleviate patients condition • not be possible on competent patients • potentially benefit patient … • … or aim to help future patients with condition (in which case, must be minimal risk) • patient must not appear to object • place welfare of patient above research • identify third person for welfare consultation
  28. 28. Help! what do I do when faced by LPA/CAD/IMCA/living will/patient relative? • don’t panic! • know about the MCA, 2005 White SM, Baldwin TJ. The Mental Capacity Act, 2005. Implications for anaesthesia and intensive care. Anaesthesia 2006; 61(4): 381-9 • consult your hospital lawyer
  29. 29. Needlestuck • Needlestick injury in light of MCA, 2005 and Human Tissue Act, 2004 • previously GMC advocated HIV/HBV testing blood sample taken for other purposes, in the event of needlestick injury involving patient without capacity (+,+)
  30. 30. Needlestuck • This advice has now been withdrawn! • HTA: consent MUST be obtained to test blood sample if results relevant only to a third party • MCA: test must be done in incompetent patient’s best interests
  31. 31. Needlestuck • ie you cannot test any blood sample for HIV/HBV in patients without capacity • (unless sample taken due to strong suspicion of HIV/HBV in patient, and best interests of PATIENT served by knowing status in order to treat him/her) • White SM. Needlestuck. Anaesthesia 2007; 62(12): editorial.