Transcript Mental Capacity Act 2005 Implications for Clinicians and

The Newcastle upon Tyne Hospitals NHS Foundation Trust
Preparation for Practice
Consent, Advanced Directives
and Mental Capacity
Barry Speker OBE
DL
[email protected]
3 December 2010
Health Decisions
Consent
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Express – Oral or written
Implied
Proxy – Children
Gillick – the mature child
Standardised Consent Forms
Risks – Percentages, Local, National
Court Applications for Declarations of
Lawfulness
Taking Consent
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When? Repeating?
Where?
By whom?
Content – Risks?
Confirming details – to whom? How?
Model Forms
Use of Leaflets/Booklets
Children Cases
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Parental Responsibilty – Children Act –
Who has it?
Children in care
Disputes between parents
Specific Issues
Referral to the Court
Declarations of Lawfulness
Jehovah’s Witnesses
Mental Capacity Act 2005
A Statutory framework to empower and
protect vulnerable people who are not
able to make their own decisions
“ to clarify and reform obscure common law provisions which govern
the ways in which people can and should deal with people who lack
decision-making capacity, supplemented by new and reformed
statutory schemes for advance decision making and court-based
resolution of disputes or difficulties”
Loss of Capacity
Mental Capacity Act 2005
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Decision making for adults without capacity
Empowering and protecting vulnerable people
Planning ahead for loss of capacity-Lasting Powers of
Attorney
Advance decisions [Living Wills]
Assessing capacity
Best interests
IMCAs
Code of Practice
New criminal offence of ill-treatment and wilful neglect
New Court of Protection
Decisions, Decisions
Five Key Principles
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Presumption of Capacity Every adult has
the right to make decisions, capacity being
presumed
Right of Individuals to make, and be given all
practical help to make, own decisions,
before being presumed incapable
Right to make unwise or eccentric
decisions
Anything done for person without capacity to
be in best interests
Least restrictive intervention – on basic
rights and freedom
Incapacity
New statutory definition
“An inability to make a decision due to an
impairment of, or a disturbance in the
functioning of, the mind or brain”
Testing Incapacity
Testing Incapacity
A person is unable to make a decision for himself if
he is unable:
1.
To understand the information relevant to the
decision
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To retain that information
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To use or weigh that information as part of the
process of making the decision; or
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To communicate his decision [whether by
talking, using sign language or any other
means]
Incapacity Issues
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Fluctuating capacity
Uncertain extent of capacity
Reasonable belief based on objective
reasons
Must not make unjustified assumptions
based on age, appearance, illness,
behaviour
Resolving disputes about capacity
Refusal to be assessed
Best Interests
Check List
Whether the person will at some time have capacity in relation to
the matter in question and if so when
 So far as reasonably practicable the person must be permitted and
encouraged to participate in the decision as fully as possible in
relation to any act done by him or any decision affecting him
 Where determination relates to life-sustaining treatment the
decision-maker must not be motivated by a desire to bring about
this death
 A decision-maker must so far as is reasonably practicable consider
the person’s past and present wishes and feelings including in
particular:[a] Any witness statement made by him when he had capacity
[b] The beliefs and values that would be likely to influence a decision if
he had capacity and
[c] The other factors which he would be likely to consider if he were
able to do so.
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Consultation on Best Interests
Decision-maker must consult and take into account the views of:[a] Anyone named by the person as someone to be consulted on the
matter in question or on matters of that kind
[b] Anyone engaged in caring for the person or interested in his
welfare
[c] Any donee of a Lasting Power of Attorney granted by the person
and
[d] Any deputy appointed for the person by the Court as to what would
be in the person’s best interests
A best interests judgement is not a “substituted judgement” test
It is not an attempt to determine what the person would have wanted
although this must be taken into account
It is as objective as possible of what would be in the person’s actual
best interests
Exceptions to Best Interests
Principle
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Where someone has previously made an
Advance Directive to refuse medical
treatment while they have the capacity to
do so
Involvement in research in certain
circumstances
Protection for People providing
Care or Treatment
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An action or intervention will be lawful – i.e. health
professionals will enjoy protection from liability –
where the decision-maker has a reasonable belief
both that:The individual lacks capacity and
The decision is in his or her best interests
LIMITS
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A valid advance decision and a decision by an Attorney or the
Court takes precedence
The Act limits the extent of restriction of freedom of movement of
an incapacitated person which is lawful only if necessary to
prevent harm to the incapacitated person (not European
Convention on Human Rights Article 5.1 and the Bournewood
Case HL –v- United Kingdom [2004] ECHR
Capacity Cases which should still
go to Court
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Cases involving organ or bone marrow donation
by a person lacking capacity to consent
Proposals to withdraw or withhold artificial
nutrition and hydration from patients in a
persistent vegetative state
Proposals for non-therapeutic sterilisation
Some termination of pregnancy cases
Cases where there is a doubt or dispute about
whether a particular treatment will be in a
person’s best interests
Cases involving ethical dilemmas in untested
areas
Steps to take for protection from
Liability
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Reasonable steps to find out if the person has capacity
to make a decision about the proposed action
If they have capacity consent must be taken
Must have reasonable grounds for believing that the
action taken is in the best interests of the person who
lacks capacity
Apply all the elements of the best interests check list
Weight up reasonableness
Consider care plan
Decide whether it is an emergency
Is there an advance decision and what is its effect?
Consult appropriately
Consider professional and other guidance
Is restraint justified?
Is the response proportionate?
Advance Decisions to Refuse
Treatment
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The Act provides statutory clarification in relation to advance
decisions to refuse treatment – other advance statements may be
relevant but are not legally binding. Advance refusal of treatment is
binding if:The person making the directive is 18 or older when it was made
and had the necessary mental capacity
It specifies the specific treatment to be refused and the particular
circumstances in which the refusal is to apply
The person making the directive has not withdrawn it when having
capacity to do so
The person has not appointed an Attorney to make the decision
The person making the directive has not done anything in consistent
with the directive
Advance Decisions
Oral or in writing
 If related to life-sustaining treatment must be in
writing, signed and witnessed and containing a
statement that it is to apply even where life is at
risk
 Advance decisions can not be used to refuse
basic care including warmth, shelter, hygiene,
oral food and water (but not artificial nutrition
and hydration)
[Note different considerations under Mental Health
Act 1983]
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Lasting Power of Attorney
A legal document to give another person
power to make decisions including
decisions over: Property and affairs (including financial
matters)
 Personal welfare (including healthcare and
consent to medical treatment)
Distinguish LPAs from EPAs
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EPAs – property and affairs. LPAs also cover personal
welfare
Specific and different forms to be used by donors for
EPAs and LPAs
EPAs must be registered with the Public Guardian when
donor can no longer manage affairs; LPAs can be
registered at any time. Unless registered the LPA cannot
be used
EPAs can be used while donor still has capacity to
manage affairs as with property LPAs. Personal welfare
LPAs can only be used when capacity is lost
After October only LPAs can be made but existing EPAs
will be valid. Different legal procedures.
Creating an LPA
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Adults aged over 18 with capacity
Written document set out in statutory form under regulations
Must include prescribed information about the nature and effect of
LPA
Donor must sign statement saying they have read the prescribed
information and that they want LPA to apply when they no longer
have capacity
Must name people (other than the Attorneys) who should be told
about an application to register the LPA, or it should say that there
is no one to be told
Attorneys must sign a statement saying they have read the
prescribed information and understand their duties – in particular to
act in donor’s best interests
Document must contain a statement completed by an independent
third party confirming their opinion that Donor understands LPA’s
purpose, was not exposed to fraud or undue pressure, trick or force
LPAs and Court of Protection
Determine whether LPA is valid
 Give directions about using LPA
 Removing an Attorney
The Act creates a new public guardian with
responsibility for registration and
supervision of LPAs and Court appointed
deputies
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Independent Mental Capacity
Advocate Service - IMCAs
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IMCA Service established to provide independent safeguards for
people who lack capacity to make certain important decisions and
have no one else to support or represent them
An IMCA must be instructed, and then consulted, for people lacking
capacity who have no one else to support them (other than paid
staff) whenever:An NHS body is proposing to provide serious medical treatment, or
An NHS body or Local Authority is proposing to arrange
accommodation (or a change of accommodation) in hospital or a
care home, and
The person will stay in hospital longer than 28 days, or
They will stay in the care home for more than 8 weeks
An IMCA may be instructed to support someone who lacks capacity
to make decisions concerning:Care reviews, where no one else is available to be consulted
Adult protection cases, whether or not family, friends or others are
involved
Delivery of IMCA Service
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Built on good practice in the independent advocacy
sector
Provides statutory advocacy
Instructed to support and represent people lacking
capacity to make decisions on specific issues
Have right to meet in private the person they are
supporting
Allowed access to relevant health care and social care
records
Must act quickly as part of decision making
Authority given to designated organisations to act
Decisions about Serious Medical
Treatment
Treatment which involves:
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Giving new treatment
Stopping treatment already commenced
Withholding treatment that could be offered in
circumstances where:
If a single treatment is proposed there is a fine balance
between the benefits and burdens and risks
A decision between choice of treatments is finely
balanced or
What is proposed is likely to have serious consequences
Serious Consequences
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Serious or prolonged pain, distress or side effects
Have potentially major consequences for the patient or
Have a serious impact on patient’s future life choices
Examples include chemotherapy and surgery for cancer,
ECT, therapeutic sterilisation, major surgery,
amputations, treatment which will result in loss of
hearing or sight
Withholding or stopping artificial nutrition and hydration
Termination of pregnancy
Research
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Provisions for enrolling incapacitated
adults in certain, closely regulated forms
of medical research
Excluded are clinical trials regulated under
the Medicines for Human Use (Clinical
Trials) Regulations which also enable
certain participation
Inclusion in Research
The research must have some chance of benefiting the
person who lacks capacity
 The benefit must be proportionate
 The aim of the research must be to provide knowledge
about the cause of, or treatment or care of people with,
the same impairing condition – or a similar condition
If research is for the benefit of others then: Risk to the person who lacks capacity must be negligible
 There must be no significant interference with the
freedom of action or privacy of the person lacking
capacity and
 Nothing must be done which is unduly invasive or
restrictive
 Differentiate between therapeutic and non-therapeutic
research
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Ill-Treatment or Neglect
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Act creates new offence of ill treating or wilfully
neglecting a person who lacks capacity
Additional to offences under the Mental Health
Act 1983 which relate to ill treatment or neglect
of mentally disordered persons
New offence may be committed by professional
carers, non-professionals such as relatives,
donees or LPA or Court appointed deputies
Punishable by up to 5 years imprisonment
CODE OF PRACTICE
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Issued by the Lord Chancellor on 23 April
2007
Essential guide in all cases
Will provide evidence of steps taken to
obtain protection
www.dca.gov.uk/menincap/legis.htm#cod
eofpractice 296 pages!
Summary of Decision Making
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Assessing capacity
Best interests
Valid Lasting Power of Attorney?
Valid Advance directive?
Discussion with relatives and carers
IMCA?
Court appointed deputy
Code of Practice
Application to Court?
Department of Health
Reference guide to consent for
examination or treatment.
www.dh.gov.uk/publications
Second edition 2009
Takes into account:
Human Rights Act 1998
Human Tissue Act 2004
Mental Capacity Act 2005and Code of Practice
Mrs B -v- an NHS Hospital Trust 2002
Glass-v-UK 2004 ECHR
Chester-v-Afshar 2004 UKHL
Burke-v-General Medical Council [2005]
Action on Implementation
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Training of clinicians and others
Awareness of the implications of the Act
Tests of incapacity and best interests
Meaning of advance decisions and lasting Powers of
Attorney
Reviewing Trust policies on consent, Living Wills,
withdrawal and withholding of consent
Consequential amendments to various Trust policies
Amendment of Consent Forms and issue of new formsConsent Form 4
Availability of the Code of Practice
Improved record keeping on all capacity and consent
issues
Questions?