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






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

  • 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
  • No … … and yes!
  • 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
  • Common law of consent Legally valid consent/refusal: Voluntary Informed Competent … or …
  • Competence ReC [1994]: When making a decision about treatment, a competent patient: understands the information retains the information ‘weighs it in the balance’
  • Some maxims … • A question of fact (!) – medical (court) decision • No-one may consent to medical treatment on behalf of a competent adult (18+)
  • Competent adults • may refuse all treatment even if refusal endangers their life • may make an irrational decision
  • Incompetent adults • 18+ • Temporary or permanent • In ITU: - illness - anxiety - pain - drugs - communication problems (language, ETT)
  • 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.’
  • So… … if incompetent adults can’t consent, what is the legal justification for their treatment?
  • ‘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
  • ‘Best interests’ Treatment of incompetent adults is lawful if the treatment proposed is: NECESSARY + in the patient’s BEST INTERESTS
  • ‘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
  • So, what’s new about the Mental Capacity Act, 2005?
  • 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
  • Protect from whom?
  • • Royal Assent April 2005 • Enforced 1st October, 2007
  • 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
  • … 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
  • ‘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
  • 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
  • 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
  • LPAs, CADs, IMCAs IMCA = independent mental capacity advocates • support decision making by LPAs/CADs/doctors/courts • but cannot actually make decisions about medical treatment
  • 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)
  • Advanced decisions and MCA • as for common law • may be superceded by LPAs • doctors must make efforts to ascertain the existence of an AD
  • Research • has never been regulated by statute in UK • MCA - all ‘intrusive’ research involving incompetent over 16s must have REC approval
  • 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
  • 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
  • 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 (+,+)
  • 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
  • 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.