Will the Mental Capacity Act

restrict my practice?

Dr Stuart White, BSc, FRCA, MADr Stuart White, BSc, FRCA, MAConsultant Anaesthetist, Brighton and Sussex University Consultant Anaesthetist, Brighton and Sussex University

Hospitals NHSTHospitals NHST

Honorary Senior Lecturer, Brighton and Sussex Medical SchoolHonorary Senior Lecturer, Brighton and Sussex Medical School

No …No …… … and yes!and yes!

Will the Mental Capacity Act restrict my practice?

NONO - MCA is basically a statutory - MCA is basically a statutory codification of the common law codification of the common law

YESYES - age change- age change

- LPAs/CADs/IMCAs- LPAs/CADs/IMCAs

- (living wills)- (living wills)

- research- research

Common law of consentCommon law of consent

Legally valid consent/refusal:Legally valid consent/refusal:

VoluntaryVoluntaryInformedInformed

CompetentCompetent

… … or …or …

CompetenceCompetenceReC ReC [1994]: [1994]: When making a decision about treatment, a When making a decision about treatment, a

competent patient:competent patient:

understandsunderstands the information the information

retainsretains the information the information

‘‘weighs it in the balance’weighs it in the balance’

Some maxims …Some maxims …

• A question of fact (!) – medical A question of fact (!) – medical (court) decision(court) decision

• No-one may consent to medical No-one may consent to medical treatment on behalf of a competent treatment on behalf of a competent adult (18+)adult (18+)

Competent adultsCompetent adults

• may refuse all treatment even if may refuse all treatment even if refusal refusal endangers their lifeendangers their life

• may make an irrational decisionmay make an irrational decision

Incompetent adultsIncompetent adults• 18+18+

• Temporary or permanentTemporary or permanent

• In ITU:In ITU:

- illness- illness

- anxiety - anxiety

- pain- pain

- drugs- drugs

- communication problems (language, - communication problems (language, ETT)ETT)

Temporary factorsTemporary factors

LJ Butler-Sloss in LJ Butler-Sloss in ReMB:ReMB:

‘‘… … temporary factors such as temporary factors such as confusion, shock, fatigue, pain or confusion, shock, fatigue, pain or drugs might completely erode drugs might completely erode capacity but only if such factors were capacity but only if such factors were operating operating to such a degree that to such a degree that the ability to decide was absentthe ability to decide was absent.’.’

So…So…… … if incompetent adults if incompetent adults

can’t consent, what is can’t consent, what is the legal justification for the legal justification for

their treatment?their treatment?

‘‘Best interests’Best interests’• ReF(mental patient: sterilisation) ReF(mental patient: sterilisation)

[1990] [1990]

• F, 36, mentally handicapped F, 36, mentally handicapped

• hospital sought declaration that it hospital sought declaration that it would be lawful, and in F’s would be lawful, and in F’s best best interestsinterests, to sterilise her, to sterilise her

• upheld by HLupheld by HL

‘‘Best interests’Best interests’Treatment of incompetent adults is Treatment of incompetent adults is

lawful if the treatment proposed is:lawful if the treatment proposed is:

NECESSARYNECESSARY

+ in the patient’s + in the patient’s BEST INTERESTSBEST INTERESTS

‘‘Best interests’Best interests’• ‘‘best interests’ is not the same as best interests’ is not the same as

‘medical best interests’‘medical best interests’

• the the doctorsdoctors decide what is in the decide what is in the patients best interests (but should be patients best interests (but should be prepared to justify their decision to prepared to justify their decision to the courts)the courts)

• the the assentassent of relatives should be of relatives should be soughtsought

So, what’s new about So, what’s new about the Mental Capacity Act, the Mental Capacity Act,

2005?2005?

Mental Capacity Act, 2005Mental Capacity Act, 2005• Law Commission Law Commission Mental IncapacityMental Incapacity (1995) (1995)• Lord Chancellor’s departmentLord Chancellor’s department - - Who DecidesWho Decides (1997), (1997), Making DecisionsMaking Decisions (1998) (1998)

• DCA DCA Mental Incapacity BillMental Incapacity Bill (2003) (2003)

• Aims Aims - to ‘- to ‘empowerempower and and protectprotect people who people who cannot cannot

make decisions for themselves’make decisions for themselves’- more than current common law- more than current common law

Protect from Protect from whom?whom?

• Royal Assent April 2005Royal Assent April 2005

• Enforced 1Enforced 1stst October, 2007 October, 2007

Mental Capacity Act, 2005Mental Capacity Act, 2005

5 core principles:5 core principles:

• over 16s have capacity unless clearly over 16s have capacity unless clearly incapableincapable

• should be helped to express capacityshould be helped to express capacity

• capable patients can make unwise decisionscapable patients can make unwise decisions

• incapable patients are treated in their best incapable patients are treated in their best interestsinterests

• minimum necessary intervention if acting in minimum necessary intervention if acting in the best intereststhe best interests

… … so …so …• All over 16s have capacity unless All over 16s have capacity unless

they obviously don’t …they obviously don’t …

• … … if they don’t, you give the if they don’t, you give the minimum necessary treatment, in minimum necessary treatment, in their best interests …their best interests …

• … … but only after you’ve given them a but only after you’ve given them a chance to show they have capacitychance to show they have capacity

‘‘Best interests’Best interests’

More than ‘medical best interests’:More than ‘medical best interests’:

• non-discriminatory (age, pathology)non-discriminatory (age, pathology)

• is recovery of competence likely?is recovery of competence likely?

• wishes of patient (involve relatives)wishes of patient (involve relatives)

• withdrawal must not intend to cause withdrawal must not intend to cause deathdeath

• restraint: necessary + proportionaterestraint: necessary + proportionate

LPAs, CADs, IMCAsLPAs, CADs, IMCAsLPAs = (donees of) ‘Lasting Powers of LPAs = (donees of) ‘Lasting Powers of

Attorney’Attorney’

• appointed by competent patientsappointed by competent patients

• can make future healthcare decisions in can make future healthcare decisions in best interests if patient lacks capacitybest interests if patient lacks capacity

• including end-of-life decisions if including end-of-life decisions if stipulatedstipulated

• registered with the new Office of the Public registered with the new Office of the Public Guardian in order to be validGuardian in order to be valid

LPAs, CADs, IMCAsLPAs, CADs, IMCAs

CADs = Court-appointed deputiesCADs = Court-appointed deputies

• appointed by new Court of Protectionappointed by new Court of Protection

• if no LPA/permanently incapacitantif no LPA/permanently incapacitant

• can make judgments regarding can make judgments regarding treatment decisions in incapable over treatment decisions in incapable over 16s16s

• but but notnot including end-of-life decisions including end-of-life decisions

LPAs, CADs, IMCAsLPAs, CADs, IMCAs

IMCA = independent mental capacity IMCA = independent mental capacity advocatesadvocates

• support decision making by support decision making by LPAs/CADs/doctors/courtsLPAs/CADs/doctors/courts

• but cannot actually make decisions but cannot actually make decisions about medical treatmentabout medical treatment

Advance directives Advance directives (anticipatory decisions, living (anticipatory decisions, living

wills)wills)• have been common law since have been common law since ReAK ReAK (2001)(2001)

• Legally valid if:Legally valid if:

- - refusalrefusal of treatment clearly established of treatment clearly established

- patient competent at the time of the decision- patient competent at the time of the decision

- patient adequately informed at time of decision- patient adequately informed at time of decision

- decision made voluntarily - decision made voluntarily

- intended to apply in circumstances which arise- intended to apply in circumstances which arise

• cannot demand treatment (cannot demand treatment (BurkeBurke))

Advanced decisions and Advanced decisions and MCAMCA

• as for common lawas for common law

• may be superceded by LPAsmay be superceded by LPAs

• doctors must make efforts to doctors must make efforts to ascertain the existence of an AD ascertain the existence of an AD

ResearchResearch

• has never been regulated by statute has never been regulated by statute in UKin UK

• MCA - all ‘intrusive’ research MCA - all ‘intrusive’ research involving incompetent over 16s must involving incompetent over 16s must have REC approvalhave REC approval

ResearchResearchResearch must:Research must:

• aim to alleviate patients conditionaim to alleviate patients condition• not be possible on competent patientsnot be possible on competent patients• potentially benefit patient …potentially benefit patient …• … … or aim to help future patients with or aim to help future patients with

condition (in which case, must be minimal condition (in which case, must be minimal risk)risk)

• patient must not appear to objectpatient must not appear to object• place welfare of patient above researchplace welfare of patient above research• identify third person for welfare consultationidentify third person for welfare consultation

Help! what do I do when faced Help! what do I do when faced by LPA/CAD/IMCA/living by LPA/CAD/IMCA/living

will/patient relative?will/patient relative?

• don’t panic!don’t panic!

• know about the MCA, 2005 know about the MCA, 2005 White SMWhite SM, Baldwin TJ. The Mental Capacity Act, 2005. , Baldwin TJ. The Mental Capacity Act, 2005.

Implications for anaesthesia and intensive care. Implications for anaesthesia and intensive care. AnaesthesiaAnaesthesia 2006; 2006; 61(4)61(4): 381-9: 381-9

• consult your hospital lawyerconsult your hospital lawyer

NeedlestuckNeedlestuck

• Needlestick injury in light of MCA, Needlestick injury in light of MCA, 2005 and Human Tissue Act, 20042005 and Human Tissue Act, 2004

• previously GMC advocated HIV/HBV previously GMC advocated HIV/HBV testing blood sample taken for other testing blood sample taken for other purposes, in the event of needlestick purposes, in the event of needlestick injury involving patient without injury involving patient without capacity (+,+)capacity (+,+)

NeedlestuckNeedlestuck• This advice has now been withdrawn!This advice has now been withdrawn!

• HTA: consent MUST be obtained to HTA: consent MUST be obtained to test blood sample if results relevant test blood sample if results relevant only to a third partyonly to a third party

• MCA: test must be done in MCA: test must be done in incompetent patient’s best interestsincompetent patient’s best interests

NeedlestuckNeedlestuck

• ie you cannot test any blood sample for ie you cannot test any blood sample for HIV/HBV in patients without capacityHIV/HBV in patients without capacity

• (unless sample taken due to (unless sample taken due to strong strong suspicionsuspicion of HIV/HBV in patient, and best of HIV/HBV in patient, and best interests of PATIENT served by knowing interests of PATIENT served by knowing status in order to treat him/her)status in order to treat him/her)

• White SM. Needlestuck. White SM. Needlestuck. AnaesthesiaAnaesthesia 2007; 2007; 62(12): editorial.62(12): editorial.