Issues of Consent and Mental Capacity FDHS/FDLD Issues of Consent and Mental Capacity

Learning Outcomes To discuss the Mental Health Act 1983 To identify how why and when we would obtain consent. To discuss valid consent. To describe the process of assessment. To identify the key parts of the Mental Capacity act. To discuss individual case material relating to consent and capacity.

Mental Health Remains something of an ethical problem with lots of conflicts and problems to solve. 1 in 4 people in society will suffer from a mental health condition at some point in their lives. There is a large range of mental health conditions. Mental Health conditions do come with negative assumptions and stereotypical views of the condition. Ethical minefield conflicts between patients the safety of the patient and the protection of members of the public and the position of the nearest relative.

The Mental Health Act 1983 Many people with mental health issues are treated with community care services. This is the key piece of legislation. Alongside it comes a code of practice which gives guidance on application of the Act.

Key terms ‘Patient’ - “a person suffering or appearing to suffer from a mental disorder” (Brammer, 2007, p:464) Mental disorder Mental Impairment Severe mental impairment Psychopathic disorder Approved social worker The nearest relative

Compulsory powers “Compulsory admission should only be exercised in the last resort” Sections 2-5 of the mental health act deal with compulsory detention. The emphasis of the act is on the least restrictive intervention possible. Detention is considered on diagnosis and risk assessment. Diagnosis alone is not enough!

Informal patients This covers the majority of patients A person over the age of 16 can become an informal patient in a hospital Introduces the concept of guardianship Formal powers Guardianship – being cared for by a guardian in the community

Rights when in hospital Basic care and accommodation Informal patients have to give consent to treatment. The act provides safeguards for surgical procedures. Patients (unless detained by a criminal court) retain their right to vote. Can send and receive correspondence Can be visited by friends and family If detained cannot take legal action. Patients have the right to appeal their detention through a Mental Health Tribunal. Patients also have the right to after care on discharge

Children and young people and mental health The criteria for formal detention in hospital are the same for children and adults regardless of age. Children can be admitted informally with the consent of parents. A child’s mental health status must be considered in any assessment of the child. Informal patients – after 3 months the la has to get involved to ensure under the children act the childs welfare is paramount and the child might then become a child in need.

Task Seeking consent: Why would we do it When would we do it Where would you do it How would we do it

For a person’s consent to be valid, the person must be: capable of taking that particular decision (‘competent’) acting voluntarily (not under pressure or duress from anyone) provided with enough information to enable them to make the decision Department of Health, Social Services & Public Safety (2003) Seeking consent is part of a respectful relationship with people with learning disabilities, and should usually be seen as a process, not a one-off event. When you are seeking a person’s consent to treatment or care, you should make sure they have the time and support they need to make their decision, unless the urgency of their condition prevents this. People who have given consent to a particular intervention are entitled to change their minds and withdraw their consent at any point, if they have the capacity (are ‘competent’) to do so. Similarly, they can change their minds and consent to an intervention which they have earlier refused. It is important to let the person know this, so that they feel able to tell you if they change their mind Consent is a process. Legally, it makes no difference whether people sign a form to indicate their consent, or whether they give consent orally or even non-verbally (for example by holding out an arm for blood pressure to be taken). A consent form is only a record, not proof that genuine consent has been given.

Capacity to Consent Capacity is assumed to be present it is up the health care professional/s to demonstrate capacity is absent Capacity can fluctuate ( depends on mental state) Capacity can be ‘patchy’- i.e. the patient can consent in some areas but not others Capacity can be temporally affected (alcohol, drugs, emotional state) Discuss point 1 – do people always assume that a person with a learning disability has capacity. CF arrested. What would cause capacity to fluctuate and be patchy Think about prescribed medication?

Children and Young People 16-17 year olds can consent to medical treatment there are specific circumstances that the refusal by a competent young person can be over ruled Under 16 years - Gillick Competency applies children and young people who do not have capacity - person with parental responsibility can consent Young people aged 16/17 may have the capacity to consent to treatment but they are not necessarily able to refuse treatment. A refusal can be overruled and all that is required to proceed is a valid consent and this may be obtained from:  Competent young person OR  A holder of parental responsibility OR  The Court (in contrast to adults) can consent on behalf of those patients who are 17 and under Careful consideration needs to be given to the circumstances of a refusal by a patient under 18 years old. There may be circumstances where a minor is mature for their age and would forcibly resist treatment. In such cases or in the cases of any doubt, legal advice should be obtained as to the lawfulness of proceeding in the face of a minor’s refusal, even if a holder of parental responsibility is in favour of the treatment. This is particularly the case if any force might have to be used. e.g force feeding.

The Process of Assessment Five key phases Collecting data Validating data Organizing data Identifying patterns Reporting Subjective and objective information.

Assessments Must reflect accurately in relation to the service user’s needs Service user rights need to be respected and empowered The collection of data types must be suitable to the task ( don’t use a thermometer to check their weight) A consideration of the threats to the validity of the data must be taken on board Avoid seeing the need of the service before the service user ( e.g. ‘well we haven't got any hoists so don’t asses their mobility’) Must allow a level of transparency of ‘ how ‘ you have assessed not just ‘ what you have assessed

Decision Making Issues to consider are – What is possible ( thinking in an out of the box) What is probable What is desirable What is ethical What may be possible What problems may result What you need to do this

The five principles of the Mental Capacity Act Every adult is assumed to be able to make their own decisions unless proved otherwise People should be supported to make their own decisions People have the right to make what others may think is unwise or eccentric decisions If a person lacks capacity then anything done should be done in their best interests Anything done on behalf of people who lack capacity should be the least restrictive of their basic rights and freedoms Making choices

Task Question Why would you deprive someone of their liberty? How could you deprive someone of their liberty?

DOLS Assessment Advocacy Authorisations – urgent and standard Reviews The MCA DOL safeguards apply to anyone: - aged 18 and over - who suffers from a mental disorder or disability of the mind – such as dementia or a profound learning disability - who lacks the capacity to give informed consent to the arrangements made for their care and / or treatment and - for whom deprivation of liberty (within the meaning of Article 5 of the ECHR) is considered after an independent assessment to be necessary in their best interests to protect them from harm. The safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements The aim is to implement the safeguards in April 2009. The safeguards are designed to protect the interests of an extremely vulnerable group of service users and to: - ensure people can be given the care they need in the least restrictive regimes - prevent arbitrary decisions that deprive vulnerable people of their liberty - provide safeguards for vulnerable people - provide them with rights of challenge against unlawful detention - avoid unnecessary bureaucracy

Case Studies CF PD Richard Hammond