‘I don’t want an operation doctor’Management of the ethical and legal

dilemma

Dr Dan KinnairConsultant General Adult Psychiatrist

Brandon Unit / LGH

What I will try to cover!

1. Consent2. Mental Capacity Act 2005– Capacity principles– Assessment– IMCAs!

3. Common Law4. Mental Health Act 1983 (amended 2007)

LEGAL NOTICE

• No action should be taken on the information contained in this talk

• Participants are advised to consult their own legal advisors

Consent 1

• 16 yr old admitted following car accident – significant abdominal trauma

• How do you consent for– Bloods?– Operation?

• What do you do if your patient is extremely needle phobic and refuses blood tests, IV access?

• Parents say one thing and he says another?

Consent 2

• Informed– Appropriate level of information

• Competent– Capacity to consent

• Voluntary– Not coerced by relatives, medics, nurses etc

Consent 3

• Can be implied• Can be withdrawn• Can be verbal, non verbal or written• Under age 16 may be competent

Consent 4

• “As a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to enable him to understand what is fully proposed.”

Capacity

• Capacity = Ability to make a decision• Capacity can involve personal welfare,

healthcare and financial decisions• Empowers adults to make as many decisions

as possible

Incapacitated Adult

• MCA places in statute law the ability to make decisions in advance of becoming incapacitated

• If AD have not been made ensures that decisions are made in the patients best interests

• LPA – allows someone else to legally make healthcare decisions for another

Mental Capacity Act 2005 – What's New?

• Single test of capacity• Best Interest checklist for the incapacitated• AD and LPA for future planning• Specific legal safeguards for incapacitated adults

and new Criminal offense for ill treatment and wilful neglect

• Legal obligation to consult• IMCA service• DOLS

Principles of the MCA 1

• Presumption of capacity at all times• A new legal right to support individuals to be

supported in making their own decisions• A right to make unwise decisions• Re: B – Tetraplegic patient asked for life

support to be switched off. Patient had capacity. Hospital refused to switch off life support. What did the court decide?

Patient

• Patient with abdominal trauma is unconscious – if you don’t operate he will die

• What do you do?• Who do you speak to?• What do you need to check with them?

Principles of the Act

• Anything done for, or on behalf of people without capacity should be the least restrictive of their freedom of action and / or rights

• Must be done in their best interests• Assessment should be time and decision

specific• If in doubt – 2nd opinions, legal opinion, case

conference, ultimate referral to courts

Patient

• With abdominal trauma• Is conscious but drunk!• What do you do?

Capacity threshold

• ‘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 disturbance in the functioning of the mind or brain’ = person lacks capacity

• Could be drunk / intoxicated with drugs• Lack of capacity could be temporary or

permanent – may be possible to defer a decision to await return of capacity

Two stage capacity test

1. Is there an impairment of, or disturbance in the functioning of the persons mind

2. Has it made the person unable to make a particular decision?

Capacity

• Issue specific – the more serious the decision the greater level of capacity required

• Team decisions are not recognized in law! • Individual decision maker• Others who give advice are liable for the

advice given, but are not the decision makers

Capacity Test

• A person is unable to make a decision for himself if he is unable to understand the information relevant to the decision

• The assessor needs to decide how much information is essential to make the decision

• Time and issue specific

Capacity Test

• Retain the information• Information must be retained long enough to

make the relevant decision.• Patient with dementia

Capacity Test

• The person should use or weigh the information as part of the process of making a decision

• Severe distress can impair capacity - ?Patient in A+E following OD

• Re:MB – needed emergency C section – consented then refused because of needle phobia. Phoned high court judge – what did they decide?

Capacity Test

• The information must be believed by the patient (Re C) is not part of the Act

• Re C – In Broadmoor – gangrene of the leg. Didn’t want surgery. But had P Schizophrenia and believed that he was a top doctor and believed he wouldn’t die. What did the court decide?

Capacity Test

• Patient must be able to communicate the decision (whether by talking, using sign language, or any other means).

• Re AK – could only communicate by blinking eye lids – and had capacity.

Capacity

• Understand the information• Retain the information• Use or weigh it up• Communicate the decision

Best Interests

• All relevant circumstances must be considered• The patient should participate even if lacking in

capacity• If patient will regain capacity may be appropriate

to wait• The decision maker MUST ascertain and consider

the patients past and present wishes and feelings• Must take into account if both practical and

appropriate the views of………

ADs (anticipatory refusals)

• Only relate to medical treatments• Only in the negative to refuse medical

treatment of a specific type• An AD cannot require a doctor to provide

treatment• Person must be over 18 and have capacity –

may be withdrawn or altered orally if the person still has capacity

LPA

• Must be made on the prescribed form and registered with the Public Guardian

• Enables a mentally capable person to plan for incapacity

• Can extend to property, welfare, healthcare matters

• Decisions taken by the A are still subject to best interests requirement

IMCA

• ONLY involved if there is no person, such as a family member, donee of LPA etc

• Power to interview patient in private and to inspect records

• Acts in best interests but does not make decisions

• Offers advice to decision maker

Patient

• 70 year old man admitted with faecal peritonitis.

• How do you Consent?• How do you assess capacity?

Patient 2

• 1. Is there an impairment of or disturbance in the functioning of the persons mind / brain

• 2. Does the patient– Understand the information– Retain the information– Use or weigh it up– Communicate the decision

Patient

• During the assessment his wife informs you that he has Alzheimers disease

• His wife says she doesn’t want her husband upset and wants you to talk to her about the operation.

• What do you do?

Patient

• The patient states that he does not want an operation. He understands that he will die without the procedure and wishes to die. He explains that he has only recently been diagnosed with Alzheimers and wishes to die now before ‘losing my mind’

• What do you do?

Patient

• Wife states that since the diagnosis her husband has refused to eat. She believes that he is depressed and demands you operate to save his life. She states that she is the donee of a LPA.

• What do you do?

‘Common Law’

• What is common law?• Who has ever said – ‘they can be treated

under common law’?

Legal system

• Statute Law – through legislation e.g. MCA 2005, MHA 1983

• Common Law / Case Law – developed by judges and courts through decisions made by individual cases.

Common Law

• Prior to the introduction of the MCA – incapacitated patients were treated essentially under common law.

• Whatever is done for a patient– Life threatening or serious situations– Best interests

MHA 1983 amended 2007

• Can only be used to enforce treatment for mental health conditions

• Very powerful piece of legislation• Need to understand how it works in your own

institution

Section 5(4)

• Power granted to RMNs to detain a patient for up to 6 hours for medical assessment where mental illness is suspected.

• Form to be completed!

Section 5(2)

• The RMO or nominated deputy can detain a patient for up to 72 hours under the mental health act.

• No appeal• Legal form for hospital managers• To allow formal mental health act to be

completed

Section 2

• 2 doctors – at least 1 of whom should be Section 12(2) approved

• 1 AMHP – not just SW now• Section for maximum of 28 days for

assessment (and treatment) of a mental disorder

• Appeal within first 14 days – heard within 7 days by a tribunal

Section 3

• 2 doctors – at least 1 of whom should be Section 12(2) approved

• 1 AMHP – not just SW now• Section for maximum of 6 months for

treatment of a mental disorder• 1 Appeal to both hospital managers panel and

tribunal.

Conclusion

• Remember – MDU / MPS, Trust pays for legal advice, Judges are contactable 24 hrs/day if necessary

• While team decisions are good – an individual is the decision maker

• Consent• Tests for capacity• Asking for help – role of advice• MCA 2005• MHA 1983