Capacity Assessments Advance Decisions & Lasting Power of Attorney Dan Bailey King’s College Hospital May 2017

1. The Mental Capacity Act:
Capacity Assessments
Advance Decisions
& Lasting Power of Attorney
Dan Bailey
King’s College Hospital
May 2017

2. Aim and Objectives
Aim
To provide a practical understanding of the central concepts
of the Mental Capacity Act using a real case
Objectives
• Understand concept of Mental Capacity
• Know how to assess capacity and apply it practically
• Understand the concept of advance decisions and LPA
• Know how to manage a patient with either advance
decisions and LPA

3. An Ethical Challenge
Autonomy Beneficence
Non-
Maleficence
Justice
“The Four Pillars of Medical
Ethics”

4. Consent is the key to autonomy in healthcare
VALID CONSENT
1
2
3
Voluntary
Informed
Person has
capacity

5. Mental Capacity is the ability to make a
decision
Mental
Capacity
=
Decision Making
Capacity
=
Competence

6. Mental Capacity leads to all kinds of
questions

7. The Mental Capacity Act gave structure to
a complex legal situation
Replaced “common” (Court) law
concerning people who lacked capacity
Introduced new tools and powers:
Capacity assessment
Best Interest Process
Advance Decision Making
Capacity assessment
Best Interest Process

8. The Act has 5 Core Principles…
1 Presumption of capacity in people 18+
5
3
2 Reasonable help to make a decision
Allow people to make unwise choices
Acts done for/on behalf must be in
best interests
Best Interests = less restrictive
course, respecting rights/freedom of
action
4

9. It’s time to introduce Frank
74 Year old Man
PD
Lewy Body Dementia
#NOF
From Residential Home
Walks short distances
with frame
Unable to swallow

10. You are called to see Frank
when on call…
NG Feed has been in situ
Pulled out tube
Refusing re-insertion
Poor iv access

11. Before you test for capacity you must do
one thing…
KNOW WHAT THE
DECISION IS THAT
THE PERSON HAS
TO MAKE

12. The test for capacity has 2 stages…
Impairment of the
functioning of the
mind/brain
Firstly you must have…
If the person does not
meet this criterion then
they have capacity to
make the decision in
question

13. The second stage is the functional test…
Criterion
Understand
information
Test
Risks Benefits All
Options
No
Decision
Retain
information
Duration of
conversation
Use/Weigh
information
Show their
“working”
How did they arrive
at the decision?
Communicate Through any
means

14. How sure do you have to be?
BALANCE OF
PROBABILITIES…
Is it more likely than not
that the person has
capacity?

15. How to record the test?
Record keeping: “Professionals should never express an opinion without carrying out a proper
examination and assessment of the person’s capacity to make the decision” [para 4.52]
• NO statutory form – create your own or write in notes
• Impairment / disturbance and age 16+
• Date and decision to be made
• Test of capacity
Mr Jones could not
understand the
information . . .
- Understand
- Retain
- Use / Weigh
- Communicate
OR
• Practicable steps taken? NOTE: emergency care
Detail can be brief for simple and daily care BUT record more detail for complex or
important decisions [living at home or serious treatment] or where others may disagree
How do you record it?

16. Frank’s wife comes to the
ward waving a piece of paper
…
“I have a living will, do not
touch him, or I will call the
police!”

17. Advance Decisions
Synonymous with “Advance Directives”
Arise from doctrine of respect for
autonomy:
“How are we best to maintain autonomous
control of our lives, despite an envisaged
period of incompetence?”

18. Advance Decisions
Common law previously upheld right to
self determination through refusal of Rx
which might result in death…
Re:C, Re:B
Also established precedent for legally
binding advance refusals of treatment…
Re: AK [2001]

19. Advance Decisions
Re: AK in 2001 was the only case in which AD
was held to be effective and valid.
Subsequent cases HE v A Hospital Trust and W
Healthcare NHS Trust v H set out criteria where
AD may not be valid.
Overall if you made AD law was not clear as to
whether it would be upheld or not

20. Advance Decisions
Can be legally binding on healthcare
professionals
Failure to follow an Advance Decision
could lead to:
Liability in battery
A criminal charge for assault

21. Advance Decisions
Incorrectly following an Advance Decision
Patient could die
Potential for action in negligence
No E&W precedent for this as yet

22. How common are Advance
Decisions?
No official statistics
Thought to increase in number over forthcoming
years
Patients can refuse all kinds of treatment
NHS staff already deal with AD in everyday
work
Jehovah’s Witnesses
DNR forms

23. “Valid and Applicable Advance
Directive….”
What does this mean?
How do you tell?
Could most doctors identify criteria for
applicability and validity?

24. Basic Principles
Apply to >18s
Must satisfy certain validity/applicability
criteria
Have the same effect as if the person is
refusing contemporaneously
No specific form

25. General Validity Criteria
Valid if not withdrawn
Valid if there is no LPA which confers decision
making in this matter on a deputy [made after
AD]
Not valid if there has been inconsistent
behaviour
HE v NHST H

26. General Applicability Criteria
Applicable only once capacity lost!
Treatment must be specified
Relevant circumstances specified
[W NHST v H]
Unanticipated circumstances [HE V NHST H]
Special circumstances for refusal of life-
sustaining treatment

27. How to Formulate…
Fill out DNR form
Write in notes:
“In the event of a cardiopulmonary arrest,
I, Mark, do not wish to have resuscitation,
even if my life is at risk”
Patient signature
Witness signature

28. Practicalities
“I’m not sure that any 45 year old who refuses
resuscitation is competent…”
“A person must be assumed to have capacity
unless it is established that he lacks capacity”
s1(2)
“ A person is not to be treated as unable to
make a decision merely because he makes
an unwise decision”s1(4)

29. Practicalities
Code of Practice [9.8]:
• Healthcare professionals should always start from the
assumption that a person who has made an advance
decision had the capacity to make it
• Unless they are aware of reasonable grounds to doubt
that the person had capacity at that time
• If healthcare professional not satisfied of this then they can
treat without fear of liability

30. Practicalities
In emergencies what efforts should be
made to discover if an AD exists?
AD will trump earlier LPA
If valid and applicable then there is no
best interests principle [COP 9.36]

31. Practicalities
Can refuse all treatment including ANH
Cannot make advance requests
Cannot request anything currently illegal - e.g.
euthanasia
Code of practice states unable to refuse basic
care [food/shelter/warmth + ? Analgesia] - not
binding

32. Practicalities
No liability for continuing to treat unless
satisfied valid/applicable AD
No liability for witholding treatments if
reasonable belief valid AD exists
Can apply to Court of Protection for declaration
of validity of advance directive

33. Court of Protection
Can only give statement as to validity or
applicability of AD
Cannot overturn valid and applicable AD
Preservation of life allowed whilst awaiting
a court decision
Act states that where there is doubt act to
preserve life

34. Legal Problems
No chance to interact with decision maker
Assessor’s opinion of capacity will have to be
based on rationality of AD
Irrational AD will be vulnerable to finding
author is incompetent
No requirement of sufficient information cf
consent

35. Legal Problems
No requirement to lodge/record AD with
anyone
COP suggests
Carrying a card or bracelet
Keeping copy in healthcare notes
Keeping copy with GP

36. Legal Problems
Compare AD with LPA
20+ page document
Must lodge with Office of Public Guardian
Date stamped and signed on every page
By March 08 – 4,400 applications for LPA
(Equivalent to 52,800 pa)
In April 08 – 6,000 applications (72,000 pa)

37. Ethical Concerns
Not possible to predict future events so no AD
can ever be truly autonomous
Patients have problems dealing with
contemporaneous refusals
People underestimate quality of life of
disabled/demented – substituted judgement

38. Ethical Problems
Potential for denying author benefits of
advances in care
Author unable to change mind once
incompetent

39. Ethical Problems
Personal Identity Problem, “Margo”…
When a person loses competence, are they still the
same person as they were before?
If not then can one person’s decision be binding on
another?
Are incompetent people even “persons”?

40. Ethical Problems
What is the nature of the relationship
between the two?
Issues of body continuity?
Issues of mental continuity?
Psychological connectedness [per Parfit]?
Critical vs Experiential Interests [per Dworkin]?
A parent-child relationship [per Maclean]?

41. Final Thoughts
Think about mental
capacity
Know what decision has to
be made by the patient
Advance decisions can be
legally binding on health
care professionals
Law favours balance
towards preservation of life
MCA opens up a dialogue to
answer questions

42. References
 The Mental Capacity Act 2005, Chapter 9, s1 and ss24-26,
http://www.opsi.gov.uk/acts/acts2005/ukpga_20050009_en_1, accessed on 10th
December 2007.
 The Mental Capacity Act 2005: Code of Practice, Ch 9,
http://www.opsi.gov.uk/acts/acts2005/related/ukpgacop_20050009_en.pdf,
accessed on 10th December 2007. Re: AK [2001] 1 FLR 129
 HE v NHS Trust H [2005] EWHC 107
 Office of Public Guardian Annual Report, 2008,
http://www.publicguardian.gov.uk/docs/opg-annuual-report-2007-08.pdf,
accessed on 30th October 2008.
 W Healthcare NHS Trust v H [2005] 1 WLR 834
 A Maclean, Advance directives, future selves and decision-making (2006) 14
Med L rev 291
 A Maclean, Advance directives and the rocky waters of anticipatory decision
making (2008) Med L Rev
 Emily Jackson, Medical Law: Text, Cases and Materials (2006), Oxford: Oxford
University Press