Consent, Capacity and Confidentiality Andy Nuttall MCA/Mental Health Lead Educator BSUH

Part of the CQC’s 5 key questions: is the GP surgery ‘Effective?’ GPs and their staff (and all providers of health and social care) should have a good understanding of the Mental Capacity Act (MCA) 2005 and the Deprivation of Liberty Safeguards (DoLS) to ensure that they can act in a patient’s best interest. CQC GPs and the Mental Capacity Act 2005

A patient will be able to consent if their decision is: Principles of Consent A patient will be able to consent if their decision is: Informed Voluntary Having capacity

Define MCA ‘It will empower people to make decisions for themselves wherever possible, and protect people who lack capacity by providing a flexible framework that places individuals at the very heart of the decision-making process. It will ensure that they participate as much as possible in any decisions made on their behalf, and that these are made in their best interests. It also allows people to plan ahead for a time in the future when they might lack the capacity, for any number of reasons, to make decisions for themselves.’ MCA CoP Foreword 2007

MCA v Gillick MCA applies to all over 16 Below 16, ‘Gillick’ Competency applies

Particular decision at a particular time “I want to leave the GP Surgery” “I want to commit suicide” --------- - ‘under the influence, can’t get any sense’ - ‘confused’

Principles of the MCA 1) the presumption of capacity 2) take all practical steps to maximise a person’s ability to make own decision’s 3) the right to make an unwise decision 4) if a person lacks capacity, any act done must be in their Best Interests 5) choose the least restrictive option

The 2 stage test Stage 1) Is there an impairment of or disturbance in the functioning of the person’s mind or brain?

Understand the relevant information? Can they retain the information? Stage 2) Can the person: Understand the relevant information? Can they retain the information? Can they use/weigh the information Can they communicate their decision?

ADRT’s If the person lacks capacity, is there a ‘Valid and Applicable’ Advance Decision to Refuse Treatment (ADRT) ?

LPA versus N.O.K N.O.K will have no decision making powers unless they are a Lasting Power of Attorney 1) Health and Welfare Lasting Power of Attorney 2)Property and Financial Affairs Lasting Power of Attorney.

IMCA For non-urgent decision’s regarding serious medical treatment of a change of accommodation, and the person is not ‘befriended,’ then an IMCA must be appointed at the Best Interest stage

Deprivation of Liberty Safeguards (DoLS) The deprivation of liberty safeguards provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the ECHR in a hospital or care home, whether placed under public or private arrangements. The safeguards exist to provide a proper legal process and suitable protection in those circumstances where deprivation of liberty appears to be unavoidable, in a person’s own best interests.

What is confidential patient information? Confidentiality What is confidential patient information? A duty of confidence arises when one person discloses information to another (e.g. patient to clinician) in circumstances where it is reasonable to expect that the information will be held in confidence. It is: A) is a legal obligation that is derived from case law; B)is a requirement established within professional codes of conduct; and C) must be included within NHS employment contracts as a specific requirement linked to disciplinary procedures. Confidentiality NHS Code of Practice 2003

Examples

Breaching Confidentiality Such a situation might arise, for example, if a disclosure would be likely to be necessary for the prevention, detection or prosecution of serious crime, especially crimes against the person. When victims of violence refuse police assistance, disclosure may still be justified if others remain at risk, for example from someone who is prepared to use weapons, or from domestic violence when children or others may be at risk

Design  your waiting area so that the public cannot overhear or see other patient information. Make sure patients cannot read previous patients records on your computer screen. Make sure your computer is facing you and not the patient. When talking to a patient at the front desk make sure that you are not giving out personal information that can be overheard.

Before  using a fax, make sure that the receiving machine is secure – in sending an urgent fax also ask for confirmation that the fax has been received. Make sure your fax machine is in a secure area. (for example the reception area/office – and it should be in a room that is lockable. All patient records should be kept in a lockable cabinet.

When disclosure is required in circumstances that are out of the ordinary please seek advise from your Manager. Do  not discuss clinical management with a colleague where members of the public could overhear the conversation. If  necessary, check the identity of the telephone caller who requests medical information about a patient.  If unsure take a name  and number and ring them back

If you are unsure – please ask! When disclosure is requested in circumstances that are out of the ordinary seek advice from your Senior Receptionist or a senior member of staff. If  you are unsure – please ask! Beyond the Reception Desk – Confidentiality checklist

Any questions? Further reading/references: Data Protection Act (1998) The Caldicott Report (1997) Human Rights Act (1998) Mental Capacity Act 2005 Code of Practice Beyond the Reception Desk – Confidentiality checklist (2011) www.nhs.uk/Conditions/consent-to-treatment