Transcript Talk on Mental Capacity

The Judicial Studies Board
for N Ireland
Upper Bar Library
8-11-07
‘Mental Capacity –
Past, Present, & Future’
by Dr JN Scott
1
Testamentary Capacity, Rome, 125 AD
Juvenal, Satire 10, circa 125 AD
2
Testamentary Capacity, Rome, 125 AD
‘Sed omni Membrorom damno major dementia,
quae nec Nomina servorum nec vultum agnoscit
amici, Cum quo praeterita coenavit nocte, nec
illos Quos genuit, quos eduxit. Nam codice
saevo Haeredes vetat esse suos: bona tota
feruntur Ad Phialen. Tantum artificis valet
halitus oris, Quod steterat multis in carcere
fornicis annis.’
Juvenal, Satire 10, circa 125 AD
3
Testamentary Capacity, Rome, 125 AD
‘But worse than any physical disability is the
dementia that cannot remember servants’
names, nor recognise the face of a friend with
whom he has dined on the previous evening,
nor even the children whom he fathered and
raised himself. By a cruel testament he forbids
his own flesh and blood to be his heirs; instead,
all his possessions go to Phiale. So potent was
the breath of her mouth that stood on sale at
the brothel for many years.’
Juvenal, Satire 10, circa 125 AD
4
Key Reports
1.
‘Mental Incapacity’
Law Com 231, February 1995
(– based on 4 previous consultation papers; 4-91, 2-93, 4-93, & 5-93)
2.
‘Who Decides? ‘
Making Decisions on Behalf of Mentally Incapacitated Adults
– CONSULTATION PAPER ISSUED BY THE LORD CHANCELLOR’S DEPT, Dec 1997
3.
‘Making Decisions’
The Govt’s proposals for making decisions on behalf of mentally
incapacitated adults
– A REPORT ISSUED IN THE LIGHT OF RESPONSES TO THE CONSULTATION PAPER
‘WHO DECIDES?’, October 1999
5
Key Reports…
4. ‘Reform of the Mental Health Act 1983’
Proposals for Consultation
Cm 4480, November 1999
5. ‘Review of the Mental Health Act 1983’
Report of the Expert (Richardson) Committee
November 1999
6. Draft Mental Health Bill
Dept of Health, June 2002
6
‘Positive ℞ Decisions about Non-Competent Patients’
DoH guidance, 1990 – HC(90)22:
1.
Capability is ‘function-specific’
you may be capable in one sphere, but not in
another.
2.
MHA applies only to mental disorder
3.
Endorses ‘best interests’ criteria
4.
Endorses ℞ without consent if ‘necessary to
preserve life, health, or well-being of patient’
7
DoH guidance, 1990 – HC(90)22:
5.
Above will be judged ‘in accordance with
responsible body of relevant professional
opinion’ - the ‘Bolam test’ 1957 (– but Court
will be the final arbiter – ‘Bolitho’ 1997)
6. Principles apply not just to acute crisis, but for
as long as non-competent state lasts
7. Decisions should be taken in consultation with
others…
8. …& should be carefully documented
8
‘Who Decides’
December 1997 Consultation Paper p6, para 2.6:
“The Government has always emphasised that it
does not accept that the individual’s right to
determine the treatment he or she is prepared
to refuse or accept extends to any action
deliberately taken to end the patient’s life.
The Govt fully supports the view … that euthanasia
is unacceptable, and should remain an offence
of murder.”
9
Background


In March 1995 the Law Commission published a
report on Mental Incapacity (HMSO, Law Co. 231)
At the end of this is a draft Mental Incapacity Bill
It proposed the following 6 uniform definitions
of persons ‘without capacity’:
1. A person is… without capacity if he is, by
reason of mental disability, unable to make a
decision for himself on the matter in question;
or because he is unable to communicate his
decision on that matter because he is
unconscious, or for any other reason.

10
1995 Law Com definitions
2. A person shall not be regarded as unable to
make a decision for himself if he is able to
understand an explanation of that info in
broad terms and in simple language
3. A person shall not be regarded as unable to
make a decision by reason of mental disability
merely because he makes a decision which
would not be made by a person of ordinary
prudence
11
‘a person of ordinary prudence’?!...
the right to self-determination:
– to refuse, even life-saving
treatment, regardless of whether
the reasons are irrational,
unknown, or non-existent.
12
1995 Law Com defns…
4.
5.
6.
A person is… Unable to make a decision, by reason of
mental disability, if he is unable to understand or
retain relevant info, inc reasonably foreseeable
consequences of deciding one way or another, or of
failing to make the decision at all; or if he is unable to
make a decision based on that info.
A person shall not be regarded as unable to
communicate his decision unless all practicable
steps to enable him to do so have been taken
without success –‘enhancing capacity’
There shall be a presumption against lack of
capacity, and any question as to whether a
person lacks capacity shall be decided on the
balance of probabilities – ‘He who alleges, must prove...’
13
Three ‘Key Principles’ proposed…
i.
Capacity
ii.
Best Interests
iii. The General Authority to ‘act reasonably’
14
KEY PRINCIPLES
Capacity
Suggested term is ‘mental disability’, defined as ‘ any disability of
the mind or brain, whether permanent or temporary, which results
in an impairment or disturbance of mental functioning’.
Best Interests
 Past & present wishes of the person
 Encouragement of participation
 Proper consultation of informed others
General Authority to Act reasonably
•
Proper action
•
Proper person
•
Person acts in good faith
•
Person potentially liable
Best Interests [MD, 1999, 1.11]




the ascertainable past and present wishes and feelings
of the person concerned and the factors the person
would consider if able to do so
the need to permit and encourage the person to
participate or improve his or her ability to participate as
fully as possible in anything done for and any decision
affecting him or her
the views of any other people whom it is appropriate
and practical to consult about the person’s wishes and
feelings and what would be in his or her best interests
whether the purpose for which any action or decision is
required can be as effectively achieved in a manner less
restrictive of the person’s freedom of action
16
‘Making Decisions’, 1999, 1.12
Two additional factors:


whether there is a reasonable expectation of the
person recovering capacity to make the decision
in the reasonably foreseeable future
the need to be satisfied that the wishes of the
person without capacity were not the result of
undue influence
1.13 ‘The list of factors should not be applied too
rigidly, and should not exclude consideration of
any relevant factor in a particular case.’
17
Capacity Testing
“The mental capacity required by the law in
respect of any instrument is relevant to the
particular transaction which is being effected
by means of the instrument, and may be
described as the capacity to understand the
nature of that transaction when it is explained.”
Gibbons v. Wright (1954)
91 CLR 423, 438.
18
Capacity Testing (2)
In other words, capacity is ‘function-specific’
ie, you may have capacity in one sphere, but
not in another… Different tests apply to
different transactions…
eg, Capacity to:
 Make a will
 Revoke a will
 Make a lifetime gift
 Create or change an EPA
 Administer one’s property and affairs
 Arrange for a Divorce
 Consent to medical treatment
19
Capacity Testing (3)
To judge any of these, one must see the person at
their best
ie, seek towards ‘Enhancing capacity’:






time of day, year
location
should someone else be there?
tone of voice
deafness
simplify finances,



eg direct debit, single bank account, etc
But don’t enhance ‘too far’ … beware ‘undue influence’
Answers to questions amenable to only a ‘yes or no’
answer are not reliable...
20
Criteria for Testamentary Capacity
The person:
1. understands the act of making a will
2. has reasonable knowledge of the extent of
his/her assets
3. knows and appreciates which people may
reasonably expect to be beneficiaries (even
though he/she may choose to exclude them)
4. is not influenced in making the will by an
abnormal emotional state, or the presence of
delusional (false) beliefs
Banks v Goodfellow [1870]
21
Criteria for Enduring Power of Attorney
The donor must understand that:
1. The attorney will be able to assume complete
authority over the donor’s affairs
2. The attorney will be able to do anything with
the donor’s property which the donor could have
done
3. The authority will continue if the donor should be
or should become mentally incapable
4. If the donor should be or become mentally
incapable, the EPA will only be revocable through
direct confirmation by the OCP
Re K, Re F [1988]
22
‘Disability in Relation to Trial’ (unfitness to plead)
a defendant is fit to plead if he can:
1. Understand the charge and its implications
2. Distinguish & decide between a plea of guilty
and not guilty
3. Challenge a juror to whom he might object
4. Instruct solicitors & counsel
5. Follow the evidence in court
6. Give evidence in own defence
ie, has ‘decisional competence’ (Mackay 1995)
R v Pritchard (1836); R v M (2003)
23
R v M elaborations… eg, pt 6 above
The defendant must be able to:
 understand the questions asked in the w box
 ‘apply his mind’ to answering them
 convey intelligibly the answers he wishes to give
NB:
 ability is at time of trial, not time of offence
 amnesia not of itself a defence
24
Psychiatric assessment
2 conditions must be met:
 the person is suffering from a mental disorder
 because of that mental disorder, they fail any
(usually all) of above tests
“These two conditions do not automatically coincide.
People suffering from mental disorder (even liable to be
detained under the MHO) might be quite capable…”
Thus diagnosis is one thing; and incapability (because of the
diagnosis) is another.
25
Diminished Responsibility
Homicide Act 1957, sect 2. Defendant must have been:



suffering from an ‘abnormality of mind’ (AoM)
at the time
AoM results from major mental illness (usu
psychosis), learning disability, or dementia
the AoM ‘substantially impaired mental
responsibility’
AoM? “… a state of mind so different from that
of ordinary human beings that the reasonable
man would term it abnormal…” R v Byrne (1960)
26
‘Psychosis’
Icd-10 definition (1992):
‘The presence of hallucinations, delusions, or a
limited number of severe abnormalities of
behaviour, such as gross excitement and
overactivity, marked psychomotor retardation,
and catatonic behaviour’.
27
Necessity




A common law principle which covers situations
where (urgent) action is required to assist
another person without their consent
Intervention should be the minimal required
 but nb sufficient
Actions performed out of Necessity should not
continue for an unreasonable length of time
 progress should be made either to a situation
of consent, or use of MHO
Time not defined
 depends on circumstances of each case…
28
‘Some legal principles!’

Distinction between best interests, and necessity


‘Preserve the subject-matter of the dispute…
Preserve the body in question’




It may be best interests, but was it necessary?
ie save the life, and ask questions afterwards… Courts
nearly always protect the decision to act to save life.
eg, Jehovah’s Witnesses – ‘Hard to imagine the
parents’ right to freedom of religion trumping the
child’s right to life…’
Children are people – not ‘objects of protection’
Common-law powers only to be used in shortterm… A safety-net for the MHA, not a
substitute.
29
Gillick Competence (1986)
achieved if a minor has:






ability to understand that there is a choice & that choices have
consequences
willingness and ability to make a choice (including the option of
choosing that someone else makes treatment decisions)
understanding of the nature and purpose of the proposed procedure
understanding of the proposed procedure’s risks and side effects
understanding of the alternatives to the proposed procedure and
the risks attached to them, and the consequences of no treatment
freedom from pressure (ie, no ‘undue influence’)
Summary: “… the age of medical consent cannot be
arbitrarily fixed by numbers of years. When a minor
understands the outcome uncertainties, the medical
risks, and the benefits of available treatments, the
common law grants mature minors the right to make
their own health-care decisions.”
30
Distinction between consent and compliance

If capacity, consent may be present or not
ie, You can have consent, or absence of consent (AOC)

If there is incapacity, consent is impossible


But you can have



There is AOC
AOC without resistance (ie, compliance)
or AOC with resistance (ie, non-compliance)
Level of capacity required depends on gravity of
decision
31
Advance decisions/statements

Statements, made by people when mentally capable,
about how they wish to be treated in the future were
they to become incapable and in need of medical care
 may be advance Directive, or advance Refusal
TYPES:

Instructional; ‘General-Value’; Proxy
Q: Are they legally binding?
A: ‘Adv Directives’
NO
– doctor’s duty of care can & should over-rule. But can inform
‘best-interests’ assessment
A: ‘Adv Refusals’
YES
– providing AR is valid and applicable
– Court ruling if doubt
See BMA Code of Practice, April 1995
32
Advance decisions




Medical ℞ must be specified
Best interests criteria do not apply
A ℞ provider may safely & legally withhold ℞ if
reasonable grounds for believing that there is a
valid & applicable AD
Any dispute decided by OCP/Court
33
Mental Capacity Act (E&W) 2005




Has the potential to impact upon the whole
adult population
Responsibilities not confined to mental health
professionals, or hospital settings
Places obligations on lay carers
Implementation (E&W) wef October 2007
34
Mental Capacity Act (E&W) 2005


Murder law unchanged – no ‘assisted suicide’
But patient can bring about his death by either

making a valid & applicable written Advance
Decision
or

by giving the donee of his LPA the power to
refuse life-sustaining ℞. This is not suicide.
35
Capacity – the ‘diagnostic threshold’
A person lacks capacity





‘if at the material time he is unable to make
a decision for himself in relation to the
matter because of an impairment of, or a
disturbance in the functioning of, the mind
or brain’
Can be temporary or permanent
Decided on balance of probabilities
Avoid making capacity assumptions on grounds
of age, appearance, condition, behaviour
36
Lasting Power of Attorney







EPA Act 1985 repealed
LPA extends widely; to £, welfare, & medical
matters
Must be on prescribed form, & registered
Different donees can be specified for different
matters
Giving or refusing life-sustaining ℞ can only be
authorised if specified in LPA
Normally donee is subject to best interests
requirement
Any dispute decided by OCP/Court of Protection
37
The 3-stage test of Competency in Decision-making
about Medical treatment: (Re C, 1994)
The person:
1. Can comprehend and retain relevant information
(including consequences of having, or not having, the
proposed treatment)
2. Believes the information
3. Can weigh-up that information, balancing risks and
need, & can come to a decision, & can communicate it
Care re 2). NB the right to self-determination – to refuse even lifesaving treatment regardless of whether the reasons are irrational,
unknown, or non-existent. But a person’s insight & understanding
may be (perhaps temporarily) disrupted, rendering them
incompetent; by mental disorder, & also other factors such as
unconsciousness, delirium, shock, pain, drugs, fear, panic.

Level of capacity required depends on gravity of decision
38
BOURNEWOOD


‘A mentally disordered person lacking any capacity to consent could
be admitted to hospital as an informal patient… The basis upon
which a hospital was entitled to treat and care for such patients was
the common-law doctrine of necessity which, where proved, had the
effect of justifying actions which might otherwise be tortious.’
The House of Lords so held by allowing an appeal… 25-6-98…
 L was an autistic man aged 48. Resident in hospital for over 30
years. Lived with paid carers since 1994.
 In 7-97 became agitated at a D/C; carers could not be
contacted; taken to A&E, then re-admitted to hospital.
 Consultant responsible said it was unnecessary to detain him
compulsorily as he was compliant, and had not attempted to run
away. ‘Had he resisted, he would have been detained…’
Decision made to exclude visits from carers until staff deemed it
appropriate.
 Application for writ of habeas corpus. Refused.
39
BOURNEWOOD (2)





Court of Appeal reversed the decision. Held that L had in fact been
detained, unlawfully.
House of Lords unanimously held that whether or not L had been detained,
this was justified on common-law grounds of necessity.
As to whether L had been (unlawfully) detained, this was rejected by 3:2
majority.
‘The only comfort was that counsel for the secretary of state had assured
the House that reform of the law was under active consideration.’
(RMHA p72) – ‘Very few people with long-term mental incapacity are
currently detained under the MHA... But it is recognised that such patients
are therefore not covered by the safeguards that mental legislation
provides... There is an urgent need for a comprehensive statutory
framework for substitute decision-making to provide safeguards for patients
with long-term incapacity… building on the work already undertaken… in
Who Decides?

… one approach might be for the new mental disorder tribunals to have
similar powers to those proposed for the Court of Protection in respect of
patients with long-term mental incapacity … the tribunal could then appoint
a healthcare manager with the duty to ensure that decisions on provision of
care and treatment … are in that patient’s best interests. This group of
patients would then fall under the overall remit of the new Mental Health
Act Commission.’
40
ECHR 5-10-04 Judgement
Essentially, the ECHR found in Mr L’s favour, holding that:
1.
In determining whether a person has been deprived of their liberty for the purposes
of A5, the specific situation of the individual concerned must be considered, and
account taken of all relevant factors arising. In the case of Mr L, the Court held that
the distinction lay between a restriction of liberty, which is permissible; and a
deprivation of liberty, which is not; and that this distinction is entirely one of degree
or intensity, not nature or substance, thus making it a matter of judgement.
2.
L was being deprived of his liberty because he, ‘was under continuous supervision
and control, and was not free to leave’. Note (a) that ‘control’ is more intrusive than
‘supervision’; and (b) ‘freedom to leave’ means the freedom to go somewhere
specific, where care is being provided (in the case of L, his foster-home), as opposed
to just wandering-off, or otherwise coming under risk.
3.
The absence of procedural safeguards in such a situation of de facto detention under
the common-law doctrine of necessity, failed to protect L against arbitrary
deprivations of his liberty. His de facto detention therefore violated A5 (which it
would not have done had he been detained under the MHA, or been subject to
Guardianship.)
4.
There was equally a violation of A5 as L did not have the opportunity to have the
lawfulness of his detention reviewed by a court, as it held that neither judicial review
nor other judicial remedies cited by the UK Government in fact satisfy the
requirements of A5.
41
Implications?


‘The judgement of the ECHR is binding upon
those who provide care and treatment for
mentally incapacitated persons, as public
authorities are required to act in a way which is
HRA compatible. MHA assessment should
therefore be made in respect of any mentally
incapacitated patient whose liberty appears to
be restricted, in case there is a violation of A5.
Equally, this applies to similar persons in care
homes, in which case consideration should be
given to Guardianship application.’
How to decide between deprivation and
restriction of liberty?
42
Deprivation of Liberty? YES (ie, unlawful)
Bearing in mind the relevant case law, best current UK
legal advice (Jones, R. The Mental Health Act manual,
9th edition; 2005) takes the view that it is unlikely that a
Court would find that a mentally incapacitated patient in
a psychiatric hospital is being deprived of their liberty
unless one of more of the following 8 factors prevail:
1.
2.
3.
4.
Force being used to take a resisting patient to hospital.
Relatives or carers who live with the patient opposing
the decision to admit the patient to hospital.
Force being used to prevent the patient from leaving
hospital in a situation where the patient is making a
purposeful attempt to leave.
More than benign force being used in a non-emergency
situation to ensure that a resisting patient receives
necessary treatment for his or her mental disorder.
43
Deprivation of Liberty…
5.
6.
7.
8.
The hospital denying a request by relatives or
carers for the patient to be discharged to their
care.
A decision by the hospital to deny or severely
restrict access to the patient by relatives or
carers.
The patient being denied freedom of association
within the hospital, or otherwise being subject to
a care regime which severely restricts their
autonomy.
The patient’s access to the community being
denied or severely restricted, primarily due to
concerns about public safety.
44
Restriction of Liberty? YES (ie, lawful)
Equally, it is suggested that the following 9
circumstances would not by themselves
constitute a deprivation of liberty:
1.
2.
3.
4.
Benign force being used to take a confused patient to
hospital.
The patient being treated in a locked ward.
The design of door handles or the use of key pads
making it difficult for a confused patient to leave the
ward area.
A refusal to let the patient leave the hospital in the
absence of an escort whose role would be to support the
patient, rather than to protect the public.
45
Restriction of Liberty…
5.
6.
7.
8.
9.
Staff bringing the patient, who has wandered, back to
the ward.
The use of benign force to feed, dress or provide
medical treatment for the patient.
The use of restraint, medication, or seclusion, in an
emergency situation, in order to respond to the
patient’s disturbed or threatening behaviour.
Dissuading a confused patient from attempting to leave
the ward, using benign force if necessary; even if the
confused patient had attempted to leave the ward on
more than one occasion.
Placing reasonable limitations on the visiting of a
patient by relatives or carers.
46
CONSENT



‘12 Key Points on Consent: The Law in N
Ireland’ CMO update, Dec 2001
(see also DoH ‘Reference Guide’, March 2001
cmd 23617)
‘Consent is predicated upon Capacity’
(Ref Guide 2.1, p12)
47
CONSENT – 12 Key Points (2001)
1.
2.
3.
4.
5.
6.
7.
8.
Consent is mandatory in competent adult patients.
Consent is presumed... ie, there is a presumption
against lack of consent...
Consent is function-specific.
Consent is not ‘one-off’... Patients may, and do,
change their minds.
Children (<16 years) may be competent. See ‘Gillick
rules’.
Seeking consent on behalf of colleagues...
Patients need sufficient information. Their needs for
this may change, as they decide...
Consent must be voluntary. NB undue influence...
48
CONSENT is predicated upon Capacity…
9.
10.
11.
12.
Consent can be written, oral, or non-verbal. But the better
recorded, the better evidential, if challenged...
Capable adults are entitled to refuse treatment, even where it
would clearly benefit their health. (The right of selfdetermination – of a competent adult to refuse even life-saving
treatment regardless of whether the reasons are irrational,
unknown, or non-existent.) The only exception to this rule is
when a patient is detained under the MHO. NB, a capable
pregnant mother may refuse any treatment, even if this would be
detrimental for the foetus.
No-one can give consent on behalf of an incompetent adult. The
patient is treated in their best interests. These go wider than
perceived medical best interests... (see)
Advance Refusals are legally binding, if valid and applicable. You
must abide...
49
The END
 Comments
 Criticisms
 Questions
50