Part 3 - The Mental Capacity Act
When consenting patients, adult or adolescent, consideration must be given to whether they have capacity to give that consent. Sometimes, the consent process will require the clinician to assess capacity. It is therefore important to have a solid understanding of the Mental Capacity Act (2005), which sets out the legal framework intended to protect those without capacity and seeks to involve them as far as possible in their treatment.
Below, we look at this in more detail with Benjamin Newall, Senior Associate, from DAC Beachcroft.
Assessing Capacity
The Mental Capacity Act lays out a two-stage test for clinicians to follow. Details can be found at Mental Capacity Act – Social care and support guide1
Patients should be given the time and support that they need to assist them in making their own decisions about their care. It should be a last resort to make or allow another to make the decision for them.
Consenting adults who may lack capacity– What to watch for
“Under the Mental Capacity Act there is the assumption that an adult has capacity. However, this can change over time depending on the patient. It is therefore important to consider, and if necessary assess, capacity throughout the consent process. This would be when initially discussing the planned treatment or procedure, when seeking the patient’s consent to the planned treatment or procedure, and also just prior to providing the procedure or treatment. If there is going to be a delay in providing the treatment or a procedure, for example, a couple of extra days may pass, the clinician may need to reassess capacity to make sure nothing has changed in the interim.
It is important that the consent process is carried out by an appropriately trained, experienced healthcare professional. It needs to be a clinician involved in the treatment or the person that is recommending the treatment”Benjamin Newall, Senior Associate, DAC Beachcroft.
Clinicians should remember different patients have different needs when it comes to the information required to make their decision to undergo treatment. For example, whilst a written leaflet may be suitable for most patients, others may find a patient aid diagram or explanatory animation more readily understandable. Where the clinician and patient do not share the same language, then translated material/ translation services are also likely to be appropriate.
Patients Lacking Capacity & Best Interests
If a patient is deemed to lack capacity to give consent, and:
- Has not made an advanced decision, or
- (in the case of a child) does not have someone with parental responsibility to decide for them, or
- Has not formally appointed a person, for example, through a power of attorney, to make decisions for them then their best interests must be considered by the clinician before any decision is made about their treatment. This is covered in section 4 of the Mental Capacity Act. Hospitals also provide advocates that patients can use as a spokesperson where they struggle to understand and make decisions about their own care.
“Ultimately, if there is serious doubt or dispute about what is in an incapacitated person’s best interests, clinicians can refer the patient to the Court of Protection” Benjamin Newall, Senior Associate, DAC Beachcroft.
Recent Cases
Court of Protection recent rulings:
- Case 12 – Ruled to cease the covert medication of a 25-year-old patient, with a mild learning disability, autism and epilepsy, following earlier proceedings that had led to her being placed in residential care in her best interests. When weighing up their decision the Court took into consideration that the HRT medication could not be successfully administered covertly in a home setting on a long-term basis. They concluded that ‘hormone treatment is good for A’s health but it comes at a heavy price in terms of infringement with A’s human rights’.
- Case 23– Ruled that a care plan including arrangements to terminate the pregnancy of a woman, detained under the Mental Health Act, was lawful. The patient who has a history of drug and alcohol abuse and has had two children removed into care, was described as expressing ambivalence towards continuing the pregnancy. What the Court declined to do though, was expressly declare that the plan was in the patient’s best interest and instead placed the emphasis back on the patient to make the decision with the support of her chosen advisers.
Power of Attorney
Since 2007, two types of Lasting Powers of Attorney (LPAs) came into effect:
- Health and welfare
- Property and financial
Clinicians will be concerned with the former as this applies to decisions about medical care, whether life sustaining treatment should be provided, and whether a patient can be moved into a care facility.
These are made by a patient whilst they have capacity and are registered with the Office of the Public Guardian. They only come into effect when the patient is unable to make the decision themselves i.e., loses capacity.
Prior to the introduction of LPAs, there was the Enduring Power of Attorney (EPA). Whilst these are still relevant, clinicians should note they only apply to property and financial affairs and have no bearing on decisions around health and welfare.
Capacity and Claim Timelines
Whilst the Limitation Act 1980 applies a three-year time limit to bring a claim for all types of negligence (either from the date of the alleged negligence or the date of knowledge of the alleged negligence), it should be noted where patients lack capacity this does not apply. Therefore, there is no time limit regarding when they can bring a claim for alleged medical negligence.
The timelines are also slightly different for children. The three-year time limit for bringing a claim applies from when they turn 18, should the negligence have occurred during their childhood. Again, if they lack capacity, there is no time limit.
Documenting Consent
It is of utmost importance that, whenever clinicians are dealing with capacity or consent, they keep clear records - claims where consent is an issue are more difficult to defend where the consent process has not been clearly documented. This is because, in the absence of a clearly documented consent process, the court will only be able to have regard for the factual witness evidence. This tends to result in a situation where it is the patient’s word against that of the clinician. Where a credible patient provides a witness statement which contradicts the evidence of the treating clinician, the judge is faced with having to decide whose evidence is more reliable. Patients see less doctors than doctors see patients and are likely to have a clearer recollection, given the vested interest they had in the discussion.
A clear, contemporaneous record on the patient notes by the clinician involved is the most powerful evidence. Cases where the capacity assessment or consent process is not documented are very difficult to defend.
For more information contact [email protected]
Sources:
2 - www.bailii.org/ew/cases/EWCOP/2024/17.html
3www.bailii.org/ew/cases/EWCOP/2024/17.html
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