Mental Capacity Act

Mental Capacity can be defined as the ability to make your own decisions.

– This is very important as it gives patients autonomy and the right to make choices about their own healthcare

– It becomes complicated when people lack capacity, as others have to make decisions about patients

– The Mental Capacity act applied to people aged 16 and over. If the child is younger than 16, they only have capacity to make decisions provided that they are Gillick Competent.

5 key principles of mental capacity:

i) A person is assumed to have capacity is assumed until it is established that the person lacks it

ii) A person should not be treated as unable to decide unless all practicable steps to help them have failed

iii)  A person should not be treated as unable to decide just because it is unwise

iv) Decisions made on behalf of an incapable person must be in their best interests

v) Regard should be taken to find the solution which is least restrictive of the person’s rights and freedom of action

Important Points on Capacity

– Capacity is decision-specific -> the test must be reapplied for each new treatment decision

– Capacity can fluctuate -> if appropriate, delay treatment until capacity improves

– You have a duty to maximise the potential for competent consent by giving information:

• In a form that the patient can understand
• At a time when the patient is most able to understand

If the patient has capacity and they are refusing treatment, then you must accept their decision.

– Treating them against their wishes is against patient autonomy and will be deemed assault.

– The situation however becomes more complicated when patients lack capacity.

Under the MCA, there are 3 justifications for the provision of treatment for an adult who lacks capacity:

– If a valid advanced decision to refuse treatment exists

– If a valid Lasting Power of Attorney for Health and Welfare exists

– If neither exists, the person providing treatment should act in the patient’s best interests.

Advanced Decisions to Refuse Treatment (AD)

An advance decision is made by an adult at a time when s/he has capacity to make such a decision (at time 1) to refuse medical treatment in the future (at time 2) in the event that s/he has lost capacity

– Advanced decisions to refuse treatment can be spoken rather than written

Validity – An advanced decision is not valid if the patient has:

– Withdrawn the decision at a time when they had capacity

– Granted an LPA to someone else that grants them the power to make decisions about the type of treatment

Applicability – An advanced decision is not applicable to the treatment in question if:

– That treatment is not the treatment specified in the AD

– Any circumstances specified in the AD are absent

Advanced decisions to refuse life-saving or life-sustaining treatment carry extra conditions.

– They must be in writing

-Must be signed, witness, countersigned and include a statement that patient intends the AD to be respected even if their life is at risk

– If unsure, doctors should apply to the Court of Protection for clarification

Lasting Powers of Attorney (LPA)

This is a legal document. An adult who has capacity (the donor) may nominate an attorney (the donee), granting the donee the legal power to make decisions on the donor’s behalf.

There are 2 types of LPA, one for ‘personal welfare’ and one for finances

– The LPA that covers health and welfare decisions includes giving or refusing consent to medical treatment

–  It includes life-saving treatment, but only if express provision is made

If a person without capacity did not grant an LPA, the Court of Protection can appoint a ‘personal welfare deputy’ to make those decisions. They usually only do this if:

– There is doubt whether decisions will be made in someone’s best interests (e.g. the family disagree about care)

– Someone needs to be appointed to make decisions about a specific issue (e.g. where someone will live) 

Best Interests Decision

In the absence of a valid advance decision or LPA, the person providing treatment is responsible and must act in the best interests of the patient

– When making a best interest’s decision, there is specific things to do and not to do:

For people with mental disorders: 

– People who are detained under S2/3 of the Mental Health Act may be given treatment for a mental disorder without their consent

– This applies even if they have capacity to make decisions about their treatment

– The justification here is that the treatment is necessary for the protection of others or for the patient.

Capacity and the Law

One area where mental capacity becomes very important is in the law, as people need to have fitness to plead

– The fitness to plead is decided by a jury and means that the person has capacity to mount a defence

To have fitness to plead, you need to be able to:

– To understand the evidence

– Distinguish between guilty and not guilty please

– Instruct lawyers

– Follow court proceedings

– Give a testimony (challenge jurors)

For guilt to be established, it is necessary to determine that the defendant was criminally responsible and had the “mens rea” (guilty mind) to commit the offence. The mens rea can be absent due to:

– Age – children < 10 cannot be criminally responsible, and those aged 10-14 prosecution must prove mens rea

– Lack of criminal intent – e.g. an accident

– Automatism – this refers to dissociation of mind and action (e.g. epilepsy, concussion, sleepwalking)

– Mental disorder –defendant was insane during offense, so they did not know what they were doing was wrong.