Decisions Around Capacity

Aims of the session

• 5 key principles of MCA

• 2 stage functional test of capacity

• Begin to assess capacity

Mental Capacity Act

• Empowers and protect vulnerable people who are not able to make their own decisions.

• Defines who can take decisions and when• Enables people to plan ahead for when they may

lose capacity• The Mental Capacity Act applies to people aged 16

and over.

Five Key Principles

1. Presumption of capacity

2. Maximising decision making capacity

3. Right to make unwise decisions

4. Best interests

5. Least restrictive option

Two-stage functional test of capacity for a Specific Decision. Stage 1.

Is there an impairment of or disturbance in the functioning of a person’s mind or brain?

Is there an Impairment of or Disturbance of the functioning of the mind or brain?

YES

Does this affect the persons capacity to make a specific decision?

Is there an Impairment of or Disturbance in the functioning of the mind or brain?

Record the conclusion and no further action required under Mental Capacity Act 2005

Stage One.

Person Has Capacity

Stage two.

Does this affect the person’s capacity to make a particular decision?

Workshop.

Case 1

• Mr Jackson is brought into hospital following a traffic accident. He cannot speak and is clearly in distress, making noises and gestures. From his behaviour, hospital staff conclude that Mr Jackson currently lacks the capacity to make decisions about treatment for his injuries, and they give him urgent treatment.

• Later , one of the nurses thinks she recognises some of his gestures as sign language, and tries signing to him. Mr Jackson immediately becomes calmer, and the doctors realise that he can communicate in sign language.

• He needs a non urgent repair of his fractured ankle.• Who can consent to this?

Mental Capacity Act 2005 Code of Practice

In using sign language which of the principles is being followed?

1 2 3 4 5

7%

33%

30%

13%

17%

1. Presumption of capacity

2. Maximising decision making capacity

3. Right to make unwise decisions

4. Best interests5. Least restrictive

option

Case 2• George has severe learning disability care home.• He has poor dental hygiene and recurrent infections related to

this which causes him a lot of pain. He will not open his mouth for teeth cleaning or the dentist. The dentist feels that George needs a general anaesthetic to clean his teeth and fill any cavities.

• His mother is worried about the effects of an anaesthetic, but she hates to see him distressed and suggests instead that he should be given strong painkillers when needed.

• You as the GP are called to prescribe painkillers repeatedly for this and repeated courses of antibiotics.

• How should you go about managing this situation long term?

Mental Capacity Act 2005 Code of Practice

The team decide he should have the anaesthetic. Which of the key principles is most relevant?

23%

10%23%

20%

23%

1 2 3 4 5

1. Presumption of capacity

2. Maximising decision making capacity

3. Right to make unwise decisions

4. Best interests5. Least restrictive

option

Case 3• Peter is a 60-year-old man who is admitted to hospital for

investigations for abdominal pains. Peter had a stroke two years ago and is extremely claustrophobic. His speech is slurred and difficult to understand and he gets a little confused when he is very tired.

• The medical staff want to do an abdominal CT scan on Peter but this will require him to lie flat in an enclosed space, something that Peter will not consider. He refuses to consent to the procedure. It is clear that he understands what the doctors have explained.

http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_074624.pdf

What aspects of the mental capacity act are most relevant

0%0%0%0%0%

1 2 3 4 5

1. Presumption of capacity

2. Maximising decision making capacity

3. Right to make unwise decisions

4. Best interests5. Least restrictive

option

10

Case 4 Alfred Jones aged 82AJ is admitted following a fall at home. He was diagnosed and treated for pneumonia. He remained in hospital for three weeks rehabilitation at which stage he was mobile with a frame but had fallen three times whilst an inpatient. He was independent with ADLs and ate reasonably.His family tried to persuade him to go into a care home as he was living alone but he was insistent that he would rather die. He also refused the offer of a package of care but did agree to a weekly cleaner, meals on wheels and community alarm.

His MOCA was 28/30 and he showed no evidence of delirium.

• Using the two stage approach and thinking about the key principles of the MCA, does AJ have the capacity to make the decision to return home without a package of care?

Does he have Capacity?

0%

0%

1 2

1. Yes2. No

10

Case 4 Discussion.

• Using the two stage assessment process, he does not have a disorder of the mind or brain that might impair his decision making.

• He is presumed to have capacity• He has the right to make decisions others may

consider unwise.

Case 5 Ethel Davies aged 79ED is admitted following a fall at home. She was diagnosed and treated for pneumonia. She sometimes appeared slightly muddled, and sometimes did not appear to be listening to what you were saying. On a few occasions at night she was found sitting in the linen store. Often on the doctors rounds she was asleep.After five days of treatment her chest signs had resolved. Her family visiting from Australia asked for her to be placed in a care home as they felt she had dementia.Her MOCA was 24/30.On questioning Mrs ED about her wishes she told you she was too tired to talk about these things now. The social worker is keen for you to make a quick decision about her capacity so funding for her care home can be sorted.

• Using the two step process does the mental capacity act apply?

• If so and there may be an impairment of her capacity what things must you take into account when planning her ongoing care?

Case 5 Discussion

• She is showing signs of delirium which may well impair her capacity to make a decision about discharge.

• Given time and adequate treatment it is very possible she will regain her capacity to make this decision herself.

• Therefore such an important decision should be deferred.

• It would certainly not be in her best interests for such a restrictive decision as care home placement to be made at this stage.

Case 6 Mr Desmond Trent 89• Mr DT was found by his neighbour who had not

seen him for a week collapsed on the floor of his bungalow.

• He is known to suffer with dementia with a MOCA five months ago of 18/30.

• He was living alone with no carers and was usually seen on his way to the corner shop every morning.

• The ambulance crew noted that the house was in a squalid state with faeces stained underwear on the floor. The fridge was full of gone off milk and the carpet covered in large cigarette burns.

Case 8 Mr Desmond Trent 89• The neighbour who had found him visited the ward

and told you that he was concerned as Mr DT had on a few occasions been found wandering locally having forgotten his address.

• Mr DT wants to return home as soon as possible to be with his wife who died three years ago.

• Using the first stage of the process is the Mental Capacity Act relevant here?

• What aspects of the history might make you concerned about his ability to decide about discharge destination for himself?

• What process needs to be followed to assess his capacity to return home?

Case 8 Mr Desmond Trent 89 questions

The consultant asks him.

• Why are we worried about you returning home?• “You are after my wife”

• What would happen if you fell at home again?• “I have never fallen”

• We are all worried that you have been eating gone off food

• “My wife does all the food”

• The consultant returns a few days later and has a similar conversation, Mr ET does not remember the consultant or the previous conversation.

Case 8 Mr Desmond Trent 89 ctd

• What aspects of the mental Capacity act are being explored

• On this evidence do you feel Mr DT demonstrates capacity to decide to go home, if not why not?

• What is the next appropriate step in deciding ongoing management?

Recommended Listening.

• Radio Four Inside the Ethics committee• Episode two Series four.

• Series in which Vivienne Parry is joined by a panel of experts to tackle the ethics involved in a real hospital case.

• An 86-year-old man with dementia who has had a bad fall wants to go home but his son is concerned that he cannot look after himself and needs to be in residential care. The programme looks at how medical staff and families work out what is in his best interests and whether he has the capacity to make decisions about his care, and how his previous preferences should be included in the decision.

Recommended reading

• http://www.bmj.com/content/347/bmj.f5299

• September 2013 BMJThe Judge as Medical Ethicist.