Mental Capacity Act and Consent to treatment

What is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 is a law which explains how decisions can be made for people who cannot give consent for the care and treatment that they need. This law applied to all patients aged 16 and over.

Nobody can make decisions for another adult, unless they have been granted legal powers to do so, or they make the “best interest decision” according to the MCA.

True or false:

• HCP must always make records of the consent process

• HCP do not need to tell patients about the risk associated with treatment

• Patients require all the information to make decision about treatment

• A patient must have mental capacity to give consent

• HCP know best and can force people to have treatment

True

False

False - not all information but enough

True

False

What is consent?

The voluntary and continuing permission of the person to recieve particular treatment care and support, based on adequate knowledge of the purpose, nature, likley effects and risks including likelihood of success, any alternatives to it and what will happen if treatment does not go ahead. permission given under any unfair or undue pressure is not consent

What is implied consent?

A person who lacks capacity to consent and cannot consent to treatment, care or support, even if they cooperate with the treatment or actively seek it

What is valid consent?

• voluntary

• informed

• with capacity to make a decision

What is valid consent?

• voluntary

• informed

• with capacity to make decision

What does voluntary consent mean?

• The decision to either consent or not to consent to treatment must be made by the person, and must not be influenced by pressure from medical staff, friends or family

What is informed consent?

Informed - the person must be given all of the information about what the treatment involves, including benefits and risks, whether there are reasonable alternative treatments, and what will happen if treatment does not go ahead.

What does it mean to have capacity to give consent?

The person must be capable of giving consent which means they must understand the information being given to them to make an informed decision. If the adult has capacity and refuses a particular treatment - their decision must be respected.

What information should be given about a treatment before consent is obtained?

• intended benefits

• alternative treatment

• common, signficant and unavoidable side effects and risks

• risks specific to them

What is the difference between consent and informed consent?

Consent is where a patient agree to a treatment or procedure but properly has little understanding and consent was given with little information.

Informed consent is where the patient has been fully informed so understands the nature, the purpose, the consequences, the positives and negatives of treatment

True or false?

• Young people aged 16 and 17 years may give consent for themselves

• If, as a healthcare professional, a young person is not making a decision in their best interest you should discuss this with their parents or carers

• No child under 16 years can give valid consent

• In cases where children under the age of 16 lack competence then parenteral responsibly must give consent on child’s behalf

True

False

False

True

What is Gillick competence?

This is children under the age of 16 years who fully understand and are able to make a decision about what is involved in the proposed procedure and can also give consent.

if a child under 16 lacks competence, who gives consent on the childs behalf?

Parental responsibility must give consent on behalf of the child. It is important to involve the child as much as possible in the decision

What two occasions would permit legal involvement?

• if the child has competence and refuses treatment but the parents feel is important

• if the parent refuses consent but clinicians feel that treatment is necessary

True or false?

• A person must be assumed to have capacity unless it has been established that they lack capacity

• If a person decides not to follow the advice of a health professional and makes an unwise decision, they should be treated as if they lack capacity, and the best interest process should be followed

• Any decision made on behalf of someone who lacks capacity must be made in their best interest

• Any decision made in somones’s best interest must be the least restrictive of all options available

• True

• False

• True

• True

What are the 5 principles of the Mental Capacity Act?

• P – Presume capacity

• U – Unwise decisions allowed - if they have capacity they have right to make unwise decisions

• B – Best interests - take the view of family/friends/ carers

• Li – Less restrictive option - not least

• C – Support (practicable steps to help decide)

PUBLIC

The two stage test for assessing mental capacity - What is stage 1?

• Does the person have an impairment or disturbance of the mind or brain? This means that they have an illness or a condition that affects their decision making - can be temporary or permanent, e.g. learning disability, brain injury, mental health issues, pain, lack capacity - 2 hours later may have re-gained capacity

• If YES move to stage 2

What is stage 2?

Decide if the patient can do the following in relation to the decision in question

• understand the information given to them about the decision that needs to be made

• retain that information available to make the decision

• communicate their decision by talking using sign lanugage or simple gestures

What are the 2 major principles when assessing capacity?

• Principle 1 -presume the person has capacity and can therefore consent to what it is proposed

• Principle 2 - Provide evidence that you have taken practical steps to support the person to make their own decision e.g. what is their most appropriate method of communication? what is the best time of day? best location?

What does decision specific and time specific mean in relation to the act?

• decision specific - what is the decision that needs to be made? Some people lack capacity for one decision but not to all decisions?

• Time specific - does the person have the capacity to make a decision at a particular moment in time? You cannot generalise and say a person lacks capacity now and forever

True or false: A person who cannot retain information for a long time e.g. only can remember information for 5 minutes is not able to give consent?

False - if they can give consent and remember the information for long enough to make a decision then they are able to give consent

True or false: A non-verbal patient who can communicate by blinking or a person in a coma who is able to squeeze hand as a way of communicating is not able to give consent

False - may be able to give consent - take the practical steps required if patient has trouble communicating

What should be recorded when assessing mental capacity?

• Decision to be made

• Information given to patient

• Practicable steps taken to support decision

• Whether patient can: understand, retain, weigh, communicate

• If lacking capacity → document reasoning clearly

• Include in care plan + best interest decisions

What are the 2 stages of the Mental Capacity Assessment?

Stage 1:

• Is there impairment/disturbance in mind/brain?

Stage 2:

• Does this impairment mean the patient cannot:

  • Understand

  • Retain

  • Weigh

  • Communicate

→ If yes = lacks capacity

What happens if a patient lacks capacity?

• Check for:

  • Lasting Power of Attorney (LPA) - legal authority for someone to make the decision on their behalf

  • Court-appointed deputy - has had someone appointed by the court to make decision for them

  • Advance decision (ADRT) - has made an advanced decision to refuse treatment

• If none → make best interest decision

• Involve family/carers where appropriate

What is included in a best interest decision checklist?

• Patient’s wishes, beliefs, values

• Clinical factors (diagnosis, prognosis)

• Social & care needs

• Input from family/carers

• All relevant circumstances

• Choose least restrictive option

What is covert medication and when can it be used?

• Medication given hidden (e.g. in food/drink)

• Only if:

  • Patient lacks capacity

  • Best interest decision made

• Must:

  • Follow legal framework (MCA)

  • Be documented

  • Be agreed by MDT

• Check formulation (e.g. MR tablets cannot be crushed)

True or false?

• It is better to withhold information relating to side effects of treatment if you think it means the person will refuse to consent

• Mental capacity act applies to young people aged 16 and 17

• For a person to give valid consent they must fill in and sign a consent form

• It is useful to asses a persons general capacity

• Everyone who has a diagnosis of dementia should have capacity assessment about their care arrangements

• Mental capacity act has 5 principles

• Everyone in hospital must be appointed an IMCA

• False

• True

• False

• True

• True

• True

• False

What is IMCA?

An Independent Mental Capacity Advocate is someone who:

👉 Supports and represents a patient who lacks capacity
👉 Has NO family or friends to speak for them