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20 February 2008
Ian Barker, MDU solicitor
The treatment of patients aged 16 or more who lack capacity is now largely, though not exclusively, governed by the Mental Capacity Act 2005 (MCA). Many of the provisions in the Act are based upon existing common law principles.
The MCA is now in force and is supplemented by an extensive Code of Practice. The MCA provides a framework for the care and treatment of people who lack capacity to make decisions, or who have capacity and want to prepare for a time when they will not. Except where it replicates the MCA, the Code provides guidance rather than instruction, and there is no specific duty to comply with it. However, healthcare professionals, amongst others, do have a duty to have regard to the Code, and a failure to follow it can be referred to in Court or Tribunal proceedings.
It follows that healthcare professionals should refer to the Code when dealing with issues involving patients lacking capacity, and have an understanding of the MCA.
Five statutory principles underpin the MCA:
Whilst in large measure this sets out good practice and the common law prior to the MCA, there is now more emphasis on certain issues, for example the need to consider the least restrictive option for a patient, and the need to take all practicable steps to assist someone to make a decision before they can be treated as unable to make it.
With reference to assistance to make a decision, healthcare professionals will need to consider all practical ways in which someone can be supported to make a decision. The Code (para 2.7) suggests these might include:
Sections 2 and 3 of the MCA provide the definition of capacity and the ability to make a decision, and Chapter 4 of the Code gives detailed guidance. The starting point is the first statutory principle – that a person must be assumed to have capacity unless it is established they lack it. There is effectively a two-stage test for capacity summarised in the Code.
As the second part of the test makes clear it is the decision in question to which the issue of capacity relates. Some decisions may be relatively straightforward, and others more complex. Capacity may vary according to the complexity of the decision. Similarly, a patient’s capacity may fluctuate with time. A patient may lack capacity at one stage, but regain it later.
The MCA (Section 3(1)) states that a person is unable to make a decision for himself if he is unable to:
If any one of these 4 criteria is not met, there will be an inability to make the decision.
The fact that a person is able to retain the information relevant to a decision for only a short period does not prevent him, however, from being regarded as able to make the decision. (Section 3(3)).
A lack of capacity cannot be established merely by reference to age or appearance or an aspect of behaviour which might lead others to make unjustified assumptions about capacity.
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When it is determined that the patient does not have capacity to consent to a proposed treatment, it will then ordinarily be lawful for treatment to be given if it is in the patient’s best interests. There are though effectively two exceptions to the underpinning principle that an act done, or a decision made, under the MCA for a person who lacks capacity must be done in their best interests. The first is where someone has previously made an Advance Decision to refuse medical treatment when they had the capacity to do so. That Advance Decision, if applicable and validly made, should be respected even if it might not otherwise be considered to be in the maker’s best interests.
The second concerns circumstances in which the patient who lacks capacity is involved in research. The MCA provides separate safeguards for those who are involved in research.
There is no actual definition of best interests in either the MCA or the Code. From cases dealing with the common law prior to the implementation of the Act it is clear that there should only be one course of action or decision which is in the patient’s best interests, and that the term "best interests" will not be limited to best medical interests, but will be considered more widely to include welfare, social, emotional, psychological and other interests. This will be unaffected by the MCA.
Section 4 of the MCA sets out a checklist of matters which must always be considered by anyone who needs to determine the best interests of a patient lacking capacity. It is suggested the checklist is only a starting point. The person making the determination must consider all the relevant circumstances, and in particular take the following steps:
The requirement to consider any relevant written statement made when the patient had capacity means that someone determining a patient’s best interests should consider a written expression by the patient of their wishes, feelings and beliefs. This would apply, for example, to a healthcare practitioner or Attorney appointed under a Lasting Power of Attorney. Through such a statement, a patient may, for example, request particular treatment in a given situation. Any such written expression (not amounting to an Advance Decision) does not operate as a legal requirement, but should certainly be considered.
A good standard of record keeping is expected in relation to matters considered and decisions made under the Act. This is equally applicable to consideration of best interests (para 15.5). The Code states that any staff involved in the care of a person who lacks capacity should make sure that a record is kept of the process of working out the best interests of a patient for each relevant decision, setting out:
That record should be retained in the relevant patient records.
The requirement to consider if and when a patient might regain capacity in the future is relevant to the consideration of best interests in that it may be possible to defer a decision about treatment until the patient might be in a position to make that decision. Where urgent medical treatment is required, however, that may simply not be possible.
Permitting and encouraging the patient to participate in the process is only required “so far as reasonably practicable”, a recognition that this will clearly not be possible in all cases, for example, where a patient is in a coma.
The Code recognises that there may be disagreement about the patient’s best interests between those who are consulted, and there may also be disagreement with healthcare professionals who ultimately make the decision. Chapter 15 of the Code considers ways to settle disagreements and disputes about issues covered by the MCA generally. Further guidance is given at paragraphs 5.63-5.69. Various options are suggested including securing a second opinion, holding a case conference, attempting mediation, and involving an advocate to act on behalf of the person lacking capacity. Ultimately though, if there is a dispute which cannot be resolved, it may be necessary for the matter to be considered by the Court of Protection which will have the power to determine what is in a given patient’s best interests.
Lasting Powers of Attorney (LPAs)
The MCA replaces the scheme for Enduring Powers of Attorney (EPA) with a new form of power – the Lasting Power of Attorney (LPA). An EPA could only enable an Attorney to deal with a donor’s property and affairs. LPAs can similarly cover property and affairs, but it is now also possible to create an LPA which covers personal welfare, including decisions about medical treatment. In this way, a patient can give a Power of Attorney to someone else who can then make decisions about the patient’s healthcare once the patient no longer has capacity. Although an LPA in relation to property and affairs can be used by the Attorney even when the Donor still has capacity, an LPA dealing with personal welfare can only operate if the patient lacks capacity in relation to the issue in question.
The following points should also be borne in mind when considering an LPA dealing with personal welfare:
In addition to the ability to place restrictions or conditions in the LPA, a section of the prescribed LPA form (Section 8) also enables the patient to record guidance to the Attorney when making decisions about the patient’s best interests. As with others determining what is in a patient’s best interests under the Act, an Attorney is required (Section 4(6)(a)) to consider a patient’s past and present wishes and feelings and in particular any relevant written statement made when he had capacity. The guidance should clearly be considered by the Attorney, though is not strictly binding. Any restrictions or conditions in the LPA by contrast are binding on the Attorney.
If an urgent healthcare decision is required in relation to a patient who has made an LPA, where there is no time to contact the Attorney, the healthcare professional should treat the patient in his best interests, and then report to the Attorney.
If a healthcare professional is concerned that a given decision of the Attorney is not in the patient’s best interests, this can and should be raised with the Attorney. Again, guidance is available in Chapter 15 of the Code to assist in resolving any dispute. Complaint about an Attorney can be made to the OPG. Ultimately, it would be open to a healthcare professional or an NHS Trust to seek to make an application to the Court of Protection for a decision about a patient’s best interests.
The LPA must not only be witnessed, but separately be signed by a ‘Certificate Provider’. Sometimes two Certificate Providers will be required. Registered Healthcare Professionals are included in the category of skills based Certificate Providers, and General Practitioners in particular may find they are asked by patients to assist them in this regard. Amongst other things, the Certificate Provider has to confirm that they have discussed the contents of the LPA with the donor when the Attorney was not present, that the donor understands the purpose of the LPA and the scope of authority under it, and that no undue pressure or fraud is being used to create the LPA. Certificate Providers should read the Certificate Provider and Witness guidance produced by the OPG – document LPA107 before providing the certificate in the LPA. The OPG indicates they may need to contact the Certificate Provider to verify the information provided.
Even if not acting as Certificate Providers, healthcare practitioners may still find that they are requested to give opinions about the capacity of a patient who has created an LPA. Law Society Guidance to Solicitors advises that it may be worth asking the donor to give advance written consent authorising the Solicitor to contact the donor’s medical practitioner if the need for medical evidence should arise at a later date to assess whether the donor has capacity to make a particular decision, and states further that if there is any doubt about the donor’s capacity, a medical opinion should be considered.
Advance Decisions, previously termed living Wills or Advance Directives, are now provided for by the MCA on a statutory basis for the first time. A patient may make an Advance Decision to refuse treatment, which can operate at a time in the future, when the patient no longer has capacity, but there is no corresponding legal right to demand specific treatment.
Patients may make written statements positively requesting certain treatment or care, (see below) and these should be considered in assessing the patient’s best interests. They are not, however, legally binding.
Practitioners may find that a refusal to have particular treatment, operating as an Advance Decision, and a positive request to have certain treatment (perhaps a form of palliative care) may be contained in one document. There is nothing to prevent both things being set out in the one document
No particular formalities are required concerning the form the Advance Decision must take – it may be written or verbal – unless it deals with life-sustaining treatment (see below). However, the decision must state precisely what treatment is being refused. A statement simply indicating a general desire not to be treated is insufficient.
As with LPAs, Advance Decisions can only be made by those who are at least 18 years of age and who have capacity to make the decision specified. The starting point should be the assumption that the patient had capacity, in accordance with the first underpinning principle unless there are reasonable grounds to doubt this (para 9.8).
If a patient who has previously made an Advance Decision, subsequently creates a personal welfare LPA, the Advance Decision becomes invalid if the LPA gives the Attorney authority to make decisions about the same treatment.
The Code requires (para 9.49) that if someone tells healthcare professionals an Advance Decision exists they should make reasonable efforts to find out what the Decision is, and those efforts might include not only having discussions with relatives, but also contacting the patient’s General Practitioner, with whom the patient might have discussed an Advance Decision, or with whom a Decision might have been lodged.
Although no specific format is required (except for the refusal of life-sustaining treatment) the Code recommends that a written decision should include the following:
Full details of the person making the Advance Decision including the date of birth, home address and any distinguishing features,
The name and address of the person’s GP and whether they have a copy of the document,
A statement that the document should be used if the person ever lacks capacity to make treatment decisions,
A clear statement of the decision, the treatment to be refused and the circumstances in which the decision will apply,
The date the document was written (or reviewed),
A person’s signature (or the signature of someone the person has asked to sign on their behalf and in their presence), and
The signature of the person witnessing the signature, if there is one, or a statement directing somebody to sign on the person’s behalf.
If the Advance Decision is made verbally to a healthcare professional, for example, as part of a consultation, where possible a written record of the Advance Decision should be made and retained in the patient’s records, including the following:
Although there is no specific requirement that an Advance Decision must be discussed with a healthcare professional, the Code recommends that people who are thinking about making an Advance Decision should get advice from healthcare professionals, for example their General Practitioner. The Code also advises that the healthcare professional should record details of any discussion in the records (para 9.14).
Regular review and updating of Advance Decisions are also advised in the Code. The fact that a decision was made a long time ago does not render it invalid, but may give rise to a question about whether or not it remained the continuing wish of the Patient. Healthcare practitioners may therefore find that patients wish to review Advance Decisions with them periodically.
An Advance Decision can be revoked or amended at any time, and healthcare professionals should record any such cancellation or amendment in the healthcare records which will form a written record for future reference.
The MCA gives a measure of protection in relation to treatment withheld or withdrawn under an Advance Decision. A person will not incur liability for the consequences of withholding or withdrawing treatment from a patient if they reasonably believe a valid Advance Decision exists which is applicable to the treatment (Section 26(3)). Similarly, a person will not incur liability for carrying out, or continuing treatment unless, at the time, they are satisfied a valid Advance Decision exists which applies to the treatment (Section 26(2)).
An Advance Decision made by a mentally incapacitated patient who is detained under the long term provisions of the Mental Health Act 1983 will not be binding insofar as it refuses treatment for mental disorder.
Healthcare professionals will need to determine if a decision is valid, and applicable to the situation/treatment with which they are dealing.
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A patient may have withdrawn the Decision when he had capacity to do so, may have made an LPA giving authority to make treatment decisions previously covered by the Advance Decision, or the patient may have done something clearly going against the Advance Decision, indicating a change of mind. Any one of these will render the Advance Decision invalid (Section 25(2) and para 9.40).
An Advance Decision can only apply if the patient actually lacks capacity to make the particular decision at the relevant time. In addition, the Advance Decision must apply to the proposed treatment. The Act and Code make clear (Section 25(3)&(4) and paras 9.41–2) that the Decision will not be applicable to the treatment in question if:
The Code specifically requires (para 9.43) that when healthcare professionals determine the applicability of a decision, they must consider:
An Advance Decision may not meet the requirements of the MCA – for example in relation to life-sustaining treatment or complying with the transitional provisions. This does not mean it must be ignored. Healthcare professionals must still consider a written expression of a patient’s wishes as part of an assessment of their best interests – provided they have grounds to believe it is indeed a true expression of the patient’s wishes. The fact that the Act’s conditions are not met does not necessarily mean that a written expression of wishes should be ignored completely, and treatment given.
More stringent requirements apply if the Advance Decision involves a refusal of life-sustaining treatment. To be valid in these circumstances the following are required:
It will be possible for a patient through an Advance Decision to refuse artificial nutrition and hydration. The decision cannot, however, refuse actions needed to keep a person comfortable, for example, provision of warmth, shelter, keeping someone clean, and the offer of food and water by mouth.
The Code places greater emphasis on the importance of discussing with a healthcare professional Advance Decisions which refuse life-sustaining treatment, pointing out that an explanation can then be given about what types of treatment may be life-sustaining and in what circumstances, and what may result from refusing such treatment. Such discussion is, however, not compulsory (para 9.27).
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Some patients will have made Advance Decisions prior to the Mental Capacity Act coming into force, but which will not comply with the provisions in relation to life-sustaining treatment. The aim of the transitional provisions is to relax some of the requirements in relation to Advance Decisions refusing life- sustaining treatment, so that where a patient made a written Advance Decision refusing life-sustaining treatment before the Act came into force, but subsequently lost the capacity to amend the decision to comply with all of the new requirements, the Advance Decision will still have effect.
In order to qualify under the transitional provisions, the following requirements must be met:
It follows that where the transitional apply, it will not be necessary for the Advance Decision to:
The need for urgent treatment ought not to be hampered by the need to make enquiries about an Advance Decision. The Code recognises (paragraph 9.59) that emergency treatment should not be delayed by looking for an Advance Decision if there is no clear indication that one exists. However, if an Advance Decision has been made and is likely to be relevant, the healthcare professional should endeavour to assess its validity and applicability as soon as possible.
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Advance Decisions exist to enable a patient to refuse treatment. If valid and applicable, the Advance Decision must be followed. Patients may still express the positive wish for a particular form of treatment or care in the future however, setting out a written statement expressing their wishes and feelings about treatment they may wish to have in the event of future illness. The MCA requires that such statements must be considered when the best interests of the patient are determined (Section 4(6)(a)). Such a statement is not strictly binding. A doctor may feel that the treatment is not clinically necessary or appropriate, and so not in the patients best interests (para 5.44). The Code requires that someone making a decision about the patient’s interests should consider written statements carefully. If their decision does not follow a wish which a patient has recorded in writing, they must record their reasons why the patient’s wishes were not followed, and should be able to justify their reasons if someone challenges their assessment of best interests (para 5.43)).
Independent Mental Capacity Advocates
The Independent Mental Capacity Advocate Service established by the MCA is designed to support particularly vulnerable people who lack capacity to make decisions about serious treatment and changes of accommodation, where there are no friends or family members available or willing to be consulted about those decisions.
The Independent Mental Capacity Advocate (IMCA) will be independent of the healthcare professional making the decision, and provides support for the patient lacking capacity. The IMCA should represent the patient in discussions to work out whether the proposed decision is in the patient’s best interests, and provide information to assist in that regard. The IMCA can also raise questions or challenge decisions which appear not to be in the patient’s best interests. Information provided by the IMCA must be taken into account by any healthcare professional making a decision when endeavouring to work out what is in a patient’s best interests.
An IMCA must be instructed, and then consulted, in relation to patients who lack capacity and who have no friends or family available or willing to support them whenever:
Although not compulsory IMCAs can presently be instructed to assist in two other situations:
Serious medical treatment (defined under Regulations) includes treatment for mental and physical conditions. It involves the giving of new treatment, stopping treatment already commenced, or withholding treatment that could be offered in circumstances where:
Serious consequences are those which could have a serious impact on the patient from the effects of treatment or its wider implications.
The Code suggests (para 10.45) that examples of serious medical treatment might include chemotherapy and surgery for cancer, therapeutic sterilisation, major surgery, withholding or stopping artificial nutrition and hydration, and termination of pregnancy, amongst others.
There is one circumstance in which the duty to instruct an IMCA need not be followed (para 10.46) – where there is a need to make an urgent decision, for example, to save a patient’s life. This decision must be recorded in the notes, including the reason for not referring to the IMCA. It would be necessary, however, to instruct an IMCA to any serious medical treatment following the emergency treatment. If the patient requires treatment whilst a report is awaited from the IMCA, this can be provided in his best interests (para 10.47).
It is also not necessary for responsible bodies to instruct an IMCA for patients detained under the Mental Health Act 1983 if the treatment is for a mental disorder, and the treatment can be given without the patient’s consent under that Act.
An IMCA cannot be instructed if:
Responsibility for instructing an IMCA in a case of serious medical treatment lies with the NHS organisation providing the patient’s healthcare. If the person is in an independent or voluntary sector hospital, responsibility rests with the NHS organisation arranging and funding the person’s care. Responsibility for instruction in relation to decisions about admission to hospital for 28 days or more will be with the NHS body managing that hospital (paras 10.9-10)
As the role and IMCA is to support and represent the patient lacking capacity, it is appropriate that the IMCA should be provided with relevant records. The IMCA does not, however, have an automatic right to see all records – simply those relevant and necessary for the IMCA to deal with the issues in question.
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Court of Protection and Court Appointed Deputies
A specialist Court of Protection was established by the MCA. The former Court of Protection dealt with decisions about property and financial affairs of someone lacking capacity. The new Court has the ability also to deal with decisions concerning healthcare and welfare.
The Court of Protection has power now to:
The Court of Protection has the power to appoint a deputy to act and make decisions on behalf of someone who lacks capacity to make those decisions. In the majority of cases, the deputy is likely to be a family member, or someone who knows the patient well. The Code indicates that deputies appointed in relation to personal welfare/healthcare decisions will only be required in the most difficult cases where important and necessary actions cannot be carried out without the Court’s authority, or where there is no other way of settling a matter in the best interests of the patient who lacks capacity. Example of this include situations in which there is a history of serious family disputes which may have a detrimental effect on the patient’s future care, or where the person who lacks capacity might be at serious risk of harm if left in the care of family members.
The Order appointing the deputy will set out their specific powers and the scope of their authority. There are though specific restrictions on a deputy’s powers under the MCA (Section 20). A deputy will have no authority to make decisions or take action:
A deputy is obliged to act whenever a decision or action is required which falls within their duties as set out in the Court Order, and failure to do so can amount to a breach of duty. Deputies must (para 8.50):
If the healthcare professional suspects that a deputy is abusing their position, they should contact the OPG immediately (para 8.70). Deputies should always inform the healthcare professional with whom they are dealing that the Court has appointed them as deputy. The Court will provide the deputy with official documentation in relation to their appointment, which will indicate the extent of their authority (para 8.48). It would be reasonable for the healthcare professional to review that documentation to be clear about the extent of the authority given by the Court.
Deputies may need confidential healthcare information in order to enable them to carry out their functions. As with attorneys, deputies should only ask for information that will assist them making the decision which they are required to make on behalf of the patient lacking capacity (para 16.14). A healthcare professional should review the relevant order to confirm the appointment of a deputy and the scope of their authority, and should ordinarily release such information – but only such information – as is necessary for the deputy to carry out his function.
Prior to the implementation of the MCA, various cases had established the need to seek a declaration from the Court in particular types of cases. This requirement is unaffected by the MCA, and so approval of the Court of Protection continues to be required for the following kinds of decision:
The MCA provides a measure of protection for certain acts done in connection with the care and treatment of someone who lacks capacity. The protection applies if someone first takes reasonable steps to establish if the patient lacks capacity, and when the act is done they believe the patient lacks capacity and that it is in the patient’s best interests for the act to be done.
In such circumstances the person will not be liable for the acts taken – it will be as if the patient had consented. It follows that in such circumstances there would be no liability for assault. The limitation of liability however does not extend to civil or criminal liability for negligence in doing the act.
Use of restraint
Clearly there may be occasions when healthcare professionals need to consider the use of restraint in treating a patient lacking capacity, in that patient’s best interests. If an act is intended to restrain the patient, two further conditions are required to give protection from liability:
Section 6(4) of the MCA provides that restraint is used if someone:
Anybody proposing to use restraint must have objective reasons to justify that it is necessary. They must be able to show that the person being cared for is likely to suffer harm unless proportionate restraint is used (para 6.44). Proportionate response means using the least intrusive type and minimum amount of restraint to achieve the object, in the best interests of the person lacking capacity (para 6.47), which links with the fifth underpinning principle.
It follows that provided the conditions are met, it is permissible to restrain a patient to provide necessary treatment which might include, for example, holding a patient to administer a sedative, or taking a patient to hospital to receive necessary treatment.
Section 6 of the MCA only refers to restraint to prevent harm to the patient. The MCA does not affect the common law principles which permit the use of restraint to prevent harm to others.
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Deprivation of liberty
Although the MCA permits restraint in the patient’s best interests, it does not presently go so far as to permit a loss of liberty (Section 6(5)). The distinction between restraint, and action which goes further to amount to a loss of liberty, is not specified by the MCA or the Code. The Code (para 6.52) does recognise that it is difficult to define the difference, referring to the case of HL v UK, in which the difference was said to be one of degree or intensity, and not nature or substance.
In HL v UK it was said that “the key factor……[is] that the healthcare professionals treating and managing the applicant exercised complete and effective control over his care and movements” and “the applicant was under continuous supervision and control and was not free to leave”.
The following factors have been identified by the European Court of Human Rights as contributing to a deprivation of liberty:
If it is considered necessary to go so far as to deprive someone of their liberty in order to safeguard their interests, it is presently necessary to make application to the Court of Protection. And the Court may then grant the authority.
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This position will, however, change with the implementation of amendments to the MCA brought about by the Mental Health Act 2007. A substantial addendum to the Code is likely. In summary, the planned deprivation of liberty safeguards will mean that a hospital or care home (a ‘managing authority’) will have to seek authorisation from a ‘supervisory body’ in order to be able to deprive someone who has a mental disorder, and who lacks capacity to consent, of their liberty. The ‘supervisory body’ could be a Primary Care Trust, local authority, the National Assembly for Wales or a Local Health Board.
The safeguards will not apply to those people who are made subject to the provisions of the Mental Health Act 1983.
The safeguards will relate only to people aged 18 and over who meet the criteria for authorisation. If the issue of depriving a person under the age of 18 of their liberty arises, other safeguards must be considered (see Section 25 of the Children Act 1989). Use of the Mental Health Act 1983 may also be considered if the criteria are met. The deprivation of liberty safeguards from the MCA will therefore not apply to those under the age of 18.
There will be two types of authorisation: standard and urgent.
The supervisory body will have to obtain the relevant assessments to ascertain whether the qualifying requirements of the deprivation of liberty safeguards are met. It is planned that assessments will have to be completed within 21 days, or seven days if an urgent authorisation has been granted. The assessments will be:
It will apparently be unusual for there to be six separate assessors, but in the interests of ensuring objectivity in the assessment process, and to avoid the risk that arbitrary decisions will be taken about deprivation of liberty it is proposed that :
Once a standard authorisation has been granted, supervisory bodies will have to appoint a relevant person’s representative as soon as possible to represent the person who has been deprived of their liberty.
The role of the relevant person’s representative will be:
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