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Complex Situations (SLO7)
You have been asked to assess the capacity of a 32 year old man who is refusing treatment for a paracetamol overdose. Which of the following is NOT true regarding mental capacity?
Answer:
Healthcare professionals should understand:- The Mental Capacity Act (2005) applies in England and Wales.
- The Adults with Incapacity (Scotland) Act (2000) applies in Scotland.
- In Northern Ireland, common law applies.
Mental Capacity
Complex Situations (SLO7) / Mental Health
Last Updated: 21st November 2022
Mental capacity refers to the ability of a person to make a decision. This ability can vary depending on a patient’s condition and how it changes over time, and on the nature of the decision to be made. For this reason, capacity is described as decision-specific and time-specific; so, a person can only have capacity or lack capacity to make a specific decision at a specific time.
You must start from the presumption that every adult patient has capacity to make decisions about their treatment and care. You must not assume a patient lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including mental illness), beliefs, their apparent inability to communicate, or because they choose an option that you consider unwise.
Healthcare professionals should understand:
- The Mental Capacity Act (2005) applies in England and Wales.
- The Adults with Incapacity (Scotland) Act (2000) applies in Scotland.
- In Northern Ireland, common law applies.
- That they have a duty to protect confidentiality wherever possible, but medical information may be disclosed without consent if a person lacks capacity and it is in their best interests.
Mental Capacity Act (MCA)
The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations and enables people to plan ahead for a time when they may lose capacity. The Act is intended to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling. It also aims to balance an individual’s right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions.
The MCA has five key principles:
- Presumption of capacity — adults should always be presumed to have the capacity to make a decision, unless is is proved otherwise.
- Maximising decision-making capacity — the person must be given all practical support before it can be decided that they lack capacity. Support may involve extra time for assessment, repeating the assessment if capacity fluctuates, or using an interpreter, sign language, or pictures.
- The freedom to make seemingly unwise decisions — if the person makes a seemingly unwise decision, this in itself is not proof of incapacity. Proof of incapacity depends on the process by which the decision is made, not the decision itself.
- Best interests — any decision or action taken on behalf of the person must be in their best interests. If the decision can be delayed until the person regains capacity, then it should be. A decision taken on another's behalf should take account of their wishes, including those expressed in an advance decision, and their beliefs and values. The decision-making process should involve, when appropriate, family, carers, and significant others.
- The least restrictive alternative — when a decision is made on the person's behalf, the healthcare professional must choose the alternative that interferes least with the person's rights and freedoms while still achieving the necessary goal.
Assessing capacity
Capacity may be impaired by a number of factors, such as mental health disorders, alcohol or drug intoxication, drug withdrawal, confusion, significant emotional distress or anger, or due to intellectual disability.
Assessing capacity is a core clinical skill and doesn’t necessarily require specialist input (eg by a psychiatrist). You should be able to draw reasonable conclusions about your patient’s capacity during your dialogue with them. You should be alert to signs that patients may lack capacity and must give them all reasonable help and support to make a decision.
To establish that a person lacks mental capacity to make a specific decision, they must have ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ which may affect their ability to make a specific decision and because of this be unable to:
- Understand relevant information about the decision to be made,
- Retain that information,
- Use or weigh up that information as part of the decision-making process
- Communicate their decision (by talking, non-verbal communication, or any other means).
If you believe that a patient may lack capacity to make a decision, you must assess their capacity using the test set out in the relevant legislation. If the patient may regain capacity and the decision can be delayed, you must consider this.
If you find it difficult to judge whether a patient has capacity to make a decision, you should seek support from someone who knows the patient well, for example, another member of the healthcare team or someone close to the patient. In complex cases where you believe you’re unable to make a judgement, you should seek specialist input from psychiatrists, neurologists, speech and language therapists or liaison nurses. You should also seek specialist input if the patient or someone close to them disagrees with your judgement.
Note that people who have capacity are entitled to make decisions that clinicians may think unwise. This right is protected by law in the Mental Capacity Act.
Making a decision when a patient lacks capacity
If a person lacks the capacity to make a decision, the provisions of the Mental Capacity Act, 2005 and its code of practice should be followed. The term ‘best interest’ is used to describe the ethical basis on which decisions are made about treatment and care for adult patients who lack capacity to decide for themselves. This involves weighing up the risks of harm and potential benefits for the individual patient of each of the available options, including the option of taking no action.
If you are the treating doctor, before concluding that it is your responsibility to decide which option(s) would be of best interest to a patient who lacks capacity, you should take reasonable steps to find out:
- whether there’s evidence of the patient’s previously expressed values and preferences that may be legally binding, such as an advance statement or decision
- whether someone else has the legal authority to make the decision on the patient’s behalf or has been appointed to represent them.
If there is no evidence of a legally binding advance refusal of treatment, and no one has legal authority to make this decision for them, then you are responsible for deciding what would be of overall benefit to your patient.
In doing this you must:
- consult with those close to the patient and other members of the healthcare team, take account of their views about what the patient would want, and aim to reach agreement with them
- consider which option aligns most closely with the patient’s needs, preferences, values and priorities
- consider which option would be the least restrictive of the patient’s future options.
If a proposed option for treatment or care will restrict a patient’s right to personal freedom, you must consider whether you need legal authorisation to proceed with it in the circumstances.
Treatment in emergencies
The Mental Capacity Act also covers emergency situations. When someone who lacks capacity needs emergency medical treatment to save their life or prevent them coming to harm, the steps that are reasonable when assessing capacity and best interests will be different to the steps in non-urgent cases. In emergencies, it will almost always be in the person's best interest to give urgent treatment without delay. It is necessary to show that capacity has been considered, even if this has only been done so briefly. If there is more than one option, the treatment you provide should be the least restrictive of the patient’s rights and freedoms, including their future choices.
Independent mental capacity advocate (IMCA)
IMCAs do not necessarily need to be involved in the decisions regarding emergency treatment; the expectation is that the clinicians will act in the patient’s best interests, so an IMCA is not needed here.
IMCAs are commissioned from independent organisations by the NHS and local authorities to ensure that the MCA (2005) is being followed.
The role of an IMCA is to support and represent particularly vulnerable people who lack capacity and who do not have anyone else to represent them in decisions about changes in long-term accommodation or serious medical treatment. IMCAs will work with and support people who lack capacity, and represent their views to those who are working out their best interests. In adult protection cases, an IMCA may be appointed even where family members, friends or others are available to be consulted.
Deprivation of Liberty Safeguards (DoLS)
A deprivation of liberty occurs when a person is under continuous control and supervision, is not free to leave, and lacks capacity to consent to this arrangement. For example, a person with dementia who is not free to leave a care home and lacks capacity to consent to this.
Deprivation of Liberty Safeguards (DoLS) are an amendment to the Mental Capacity Act (2005) to ensure that any care restricting a person's liberty is appropriate and in their best interests. Deprivation of liberty for care provision is only lawful if it has been authorised in accordance with the DoLS.
Advance decisions
Advance decisions allow competent adults who understand the implications of their choices to refuse specified medical treatment in advance of a time when they may have lost the capacity to consent to or refuse that treatment.
An advance decision to refuse treatment must be valid and applicable to current circumstances. If it is, it has the same effect as a decision that is made by a person with capacity. Healthcare professionals must follow a valid and applicable advance decision, even if they think it goes against a person’s best interests.
An advance decision is considered valid if:
- you're aged 18 or over and had the capacity to make, understand and communicate your decision when you made it
- you specify clearly which treatments you wish to refuse
- you explain the circumstances in which you wish to refuse them
- it's signed by you (and by a witness if you want to refuse life-sustaining treatment)
- you have made the advance decision of your own accord, without any harassment by anyone else
- you have not said or done anything that would contradict the advance decision since you made it (for example, saying that you've changed your mind)
Note that nobody has the legal right to demand specific treatment or insist on being given treatments that healthcare professionals consider to be clinically unnecessary, futile or inappropriate.
Lasting power of attorney (LPA)
LPA is a document in which a person can nominate someone else to make certain decisions on their behalf when they are unable to do so themselves. An LPA can only be appointed by a person over 18, who has the capacity to decide to do so. There are two sorts of LPA, some are appointed for property and affairs, the other for health and welfare decisions.
Someone who has been appointed as an LPA can only act if the patient lacks capacity to make that particular decision and with certain safeguards. The LPA must make decisions in the individual’s best interest.
The Mental Capacity Act 2005 provides the legal framework to give a named person authority to make these decisions on another person's behalf. LPA replaces what was previously known as 'enduring power of attorney'. To be valid, LPA documents must be registered with the Office of the Public Guardian. If there are concerns relating to decisions taken under the authority of a LPA, the case can be referred to the Court of Protection, which has the power to remove an LPA if they do not appear to act in the best interests of the patient.
Specific situations when the LPA cannot consent to/refuse treatment:
- When the donor has the capacity to consent
- When the donor has made an advance decision to refuse treatment (unless the LPA was appointed after the AD and the donor gave permission to the LPA to override the AD)
- When the decision relates to life-sustaining treatment and this has not been expressly authorised
- When the donor is detained under the Mental Health Act
Court of Protection
The Court of Protection makes decisions on financial and welfare issues for people who lack mental capacity. It is responsible for:
- Deciding if a person has the capacity to make a particular decision for themselves.
- Appointing deputies to make decisions for people lacking capacity.
- Giving permission to make one-off decisions on behalf of a person without capacity.
- Dealing with urgent applications where a decision must be made on behalf of another without delay.
- Making decisions on LPA (or enduring power of attorney made and signed before October 1, 2007) and considering objections to these.
- Consideration of applications to make statutory wills or gifts.
- Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act (2005).
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- Biochemistry
- Blood Gases
- Haematology
| Biochemistry | Normal Value |
|---|---|
| Sodium | 135 – 145 mmol/l |
| Potassium | 3.0 – 4.5 mmol/l |
| Urea | 2.5 – 7.5 mmol/l |
| Glucose | 3.5 – 5.0 mmol/l |
| Creatinine | 35 – 135 μmol/l |
| Alanine Aminotransferase (ALT) | 5 – 35 U/l |
| Gamma-glutamyl Transferase (GGT) | < 65 U/l |
| Alkaline Phosphatase (ALP) | 30 – 135 U/l |
| Aspartate Aminotransferase (AST) | < 40 U/l |
| Total Protein | 60 – 80 g/l |
| Albumin | 35 – 50 g/l |
| Globulin | 2.4 – 3.5 g/dl |
| Amylase | < 70 U/l |
| Total Bilirubin | 3 – 17 μmol/l |
| Calcium | 2.1 – 2.5 mmol/l |
| Chloride | 95 – 105 mmol/l |
| Phosphate | 0.8 – 1.4 mmol/l |
| Haematology | Normal Value |
|---|---|
| Haemoglobin | 11.5 – 16.6 g/dl |
| White Blood Cells | 4.0 – 11.0 x 109/l |
| Platelets | 150 – 450 x 109/l |
| MCV | 80 – 96 fl |
| MCHC | 32 – 36 g/dl |
| Neutrophils | 2.0 – 7.5 x 109/l |
| Lymphocytes | 1.5 – 4.0 x 109/l |
| Monocytes | 0.3 – 1.0 x 109/l |
| Eosinophils | 0.1 – 0.5 x 109/l |
| Basophils | < 0.2 x 109/l |
| Reticulocytes | < 2% |
| Haematocrit | 0.35 – 0.49 |
| Red Cell Distribution Width | 11 – 15% |
| Blood Gases | Normal Value |
|---|---|
| pH | 7.35 – 7.45 |
| pO2 | 11 – 14 kPa |
| pCO2 | 4.5 – 6.0 kPa |
| Base Excess | -2 – +2 mmol/l |
| Bicarbonate | 24 – 30 mmol/l |
| Lactate | < 2 mmol/l |
