mandatory training on valid consents & mental capacity (2)

Mandatory Training: Valid Consents And Mental

Capacity Act

Bolarinde Ola FRCOG MD

Aims

Aim is to teach appropriate knowledge, skills and attitudes in relation to valid consents & mental capacity

Approaching Consents

Important!

• Consent forms are not always legal waivers

• If patients do not receive enough information on which to base their decision, a signed consent may not be valid. (Use interpreting service!)

• Patients also have every right to change their minds after signing the form

Important!

Do not sub-delegate inappropriately

• Do not ask junior doctor/nursing or midwifery staff to take consents for surgery or procedures they do not understand or trained to perform

Do not accept inappropriate delegation

• Are you the best person to consent the pt?

GMC on Appropriate Delegation

The practitioner must be:

• suitably trained and qualified

• have sufficient knowledge of the proposed investigation or treatment; can discuss the alternatives and risks involved

• understands, and agrees to act in accordance with the GMC guidance booklet

Source:

http://www.gmc-uk.org/static/documents/content/GMC_Consent_0513_Revised.pdf


Ensure that YOU understand the procedure and complications & can describe them

Ensure that patient understands: • Nature of the condition• Benefits of receiving the treatment versus likely

consequences of no-treatment • Reasonable or accepted alternative treatments• Any uncertainties


• Empathise: procedure may be stressful

• Ensure dignity and respect

• Adequate privacy: Talk to patient alone, if indicated

• Appropriate delegation

• Simplify and use leaflets to support

• Present risk in simple language


• If (patient, relative or carer) worried about certain kinds of risk, make sure you discuss these, even if minor or rare e.g. – Sore throat, scar numbness, – colostomy, death

• Always answer questions honestly

Can I talk it over with my family before

deciding?

What are the risks and

benefits of the alternatives?

Are there any alternatives?

What do they think is wrong

with me?

What treatment might help?

Will it cure me?

What will it involve?

What about the risks?

Will it hurt?

How long before I drive/

work/ look after my family?

Will I have to stay in

hospital? How long for?

What are the long term

complications

Remember Patient’s Perspectives


• The courts states that patients be told about ‘significant’ risks which could affect the judgement of a reasonable patient’(Chester v Afshar [2004] UKHL 41 Pt 2; The duty to warn patients about risk)

• ‘Significant risk’ is not legally defined, GMC requires doctors to tell patients about– serious risks, even if uncommon– frequently occurring’ risks, even if minor

Sharing InformationQuantifying and Qualifying

Surgical Risk

The need to know: The Sidaway point – 1980s

In mid-1980s, majority of the House of Lords

•decided that it was on the whole a matter for doctors to decide how much to tell patients about risks of treatments (The need to know)

•Patients could not sue their doctors for negligence for failing to inform of a risk

– if other reasonable body of doctors would not have informed of the risks

– An extension of “Bolam principle”

The right to know: Montgomery v. Lanarkshire Health Board - March 2015

An important new Supreme Court decision:

•1999, Mrs Montgomery, small, diabetic woman suffered shoulder dystocia

– 12 minutes to free he baby’s shoulder– Resulting in brain damage and arm paralysis– Application of Sidaway principle was rejected

•patients now regarded as persons holding rights, rather than passive recipients of the care of the medical profession (The right to know)

Presenting Information on Risk

Term Equivalent numerical ratio

Colloquial equivalent

Very common 1/2 to 1/10 One in a family

Common 1/11 to 1/100 One in a street

Uncommon 1/101 to 1/1000 One in a village

Rare 1/1001 to 1/10,000 One in small town

Very rare Less than 1/10,000 One in large Town

Risks: Serious or Frequent?Term Ratio Examples

Very frequent

1/2 to 1/10 Tenderness around scar Shoulder dystocia (If at risk)

FrequentPotentially Serious

1/11 to 1/100

Wound infection, PPH

Infrequent; but

Serious1/101 to 1/1000

Bowel, bladder, ureteric injuries at TAH & Operative Laparoscopy

Rare; but

Serious1/1001 to 1/10,000

Bowel, bladder ureteric injuries at Diagnostic Lap

Very rare; but very serious

Less than 1/10,000

Death following Diagnostic Lap(Depends on ASA score)

MONTGOMERY V. LANARKSHIRE

IMPLICATIONS FOR PRACTICE

• In March 2015, the Supreme Court set aside the Sidaway ruling – In 1988, majority of the House of Lords decided that it

was on the whole a matter for doctors to decide how much to tell patients about the risks of treatment

– (i.e. 1988-2015 the need to know rule applied)

• It ruled in favour of Montgomery, that: – “patients are now widely regarded as persons holding

rights, rather than as the passive recipients of the care of the medical profession” (

– (i.e. from 2015 – Patients have the right to know)

Example 1

Before: March 2015:

•if a woman was pregnant and had risk factors, Most Doctors focused on:

– Birth traumas, particularly:– Clavicular fracture & brachial plexus damage

After: 2015, also document discussions on:– Perinatal asphyxia and cerebral palsy stillbirth

or neonatal death– Pros and cons of alternative interventions– Ensure patient has ALL relevant LEAFLETS

Example 2

Before: March 2015

•if a woman needed a hysterectomy, Most Doctors focused mainly on:

– Infection, bleeding, transfusion, bowel, bladder, ureteric injuries, VTE, anaesthesia,

After: 2015, also document discussions on– Risk of colostomy, urinary diversion– Risk of not leaving hospital (ASA score) – Discuss pros and cons of alternative options– Ensure patient has ALL relevant LEAFLETS

Predicting Risk of Dying

• Complex, depends on– Primary diagnosis, planned operation– Co-morbidity, age– Centre expertise, MDTs, ITU support– ASA score

• Best discussed in dedicated peri-op clinic– Liaise with anaesthetists– Liaise with other professionals– Provide all clinical information

Written Consents:Types of NHS Consent Forms

Types of Consent Forms

• Form 1. Patient agreement to investigation or treatment

• Form 2 Parental agreement to investigation or treatment for a child or young person

• Form 3 Patient/parental agreement to investigation or treatment (procedures where consciousness not impaired)

• Form 4 Healthcare professionals for adults who are unable to consent to investigation or treatment

Consent Forms 1 AND 2

• Suitable for all investigations / treatments

– Minor

– Intermediate

– Major

Consent Forms 3

• Investigations / treatments where consciousness not impaired

– Diagnostics

– Minor treatment procedures

Consent Form 4: When Patient Lacks Capacity

Life-saving, or best interest procedure– Unable to comprehend and retain information material

to the decision and/or– Unable to use and weigh this information in the

decision-making process; or– Is unconscious

Make sure there are no standing arrangements– Advance directive refusing that particular treatment – Lasting Power of Attorney (LPA) – Court Appointed Deputy (CAD)– Independent Mental Capacity Advocates (IMCA)

Consent Form 4: When Patient Lacks Capacity

• Relatives cannot be asked to sign this form in lieu of an adult who is not legally competent

• Signature of health professional proposing treatment, preferably with countersignature of second professional giving opinion

• Discuss with close relatives, who may also wish to countersign

Some Pre-Tests!

Source:


Re T (Adult) [1992] 4 All ER 649

• T, a 20-year-old pregnant woman, injured in a car accident, developed complications needing blood transfusions. She did not indicate on admission that she was opposed to receiving blood

• After spending some time with her mother, (a practising Jehovah's Witness) she decided to refuse the treatment

What would you have done?

St George's Healthcare NHS Trust v S; R v Collins and others, ex parte S [1998]

• S, diagnosed with pre-eclampsia was admitted to hospital for induction of labour, but refused as she did not agree with medical intervention in pregnancy.

• Although competent and not suffering from mental illness, S was detained for assessment under the Mental Health Act. A judge made a declaration overriding the need for her consent to treatment, and her baby was delivered by caesarean section.

What do you think of this civil “sectioning”?Did the Judge act correctly?Was the judgement right or wrong?

Re MB [1997] 38 BMLR 175 CA

• MB needed a caesarean section, but panicked and withdrew consent at the last moment because of needle phobia. The hospital obtained a judicial declaration that it would be lawful to carry out the procedure, a decision that MB appealed

• Did MB lack capacity or not?• What do you think of the judicial declaration?

Relevant Legislations & some medico-legal aspects

Mental Capacity Act 2005

Framework to empower / protect those lacking capacity to make decisions for themselves

• Applies in England and Wales • Defines “Persons Who Lack Capacity”• Defines how to gauge “Best Interest” • A person does not lack capacity merely because

she makes an unwise decision

• Replaces Part 7 of the Mental Health Act 1983 (for mentally disordered persons)

Mental Capacity Act 2005

• Rules about advance decisions to refuse medical treatment

• Safeguards for research involving people who lack capacity

• Creates a new offence of wilful neglect or ill-treatment

• New roles for the courts– Independent mental capacity advocates (IMCA) for

vulnerable people– Lasting Power of Attorney (LPA) – Court Appointed Deputy (CAD)

Mental Capacity Act (2005) Mental Health Act (2007) Amendments

Are in response to the 2004 European Court of Human Rights (‘the Bournewood’) judgement

• involved an autistic man (HL) kept at Bournewood Hospital by doctors against the wishes of his carers

• The ECHR found that admission & retention in hospital (under the common law of necessity) was a breach:– of Article 5(1) ECHR (deprivation of liberty) and

– Article 5(4) (right to have lawfulness of detention reviewed by a court)

Mental Capacity Act (2005) 2007 - Amendments

The main purpose was to:• Amend the Mental Health Act 1983 (the

legislation governing the compulsory admission

• detention and treatment of certain people who may have a mental disorder)

• Introduce ‘deprivation of liberty safeguards’

Determining Mental Capacity: 5 Key Principles

1. Every adult has the right; and must be assumed to have capacity to make his or her own decisions unless proved otherwise.

2. A person must be given all practicable help before anyone treats them as not being able to make their own decisions.

– Always take reasonable steps (more specialist colleagues) to support a patient in making her own decision

– Document details of how judgements of “lack of capacity” reached

– Seek High Court approval if doubts

Determining Mental Capacity: 5 Key Principles

3. Just because an individual makes “an unwise decision”, does not imply lacking capacity to make that decision.

4. Anything done or decision made on behalf of a person who lacks capacity must be in their best interests.

5. Anything done for or on behalf of such a person should be the least restrictive of their basic rights and freedoms.

Gauging Patient’s Best Interests

Not limited to their best medical interests; other factors include:

• The wishes and beliefs of the patient when competent (Jehovah’s Witness)

• Their current wishes

• Their general well-being

• Their cultural, spiritual and religious welfare

Independent Mental Capacity Advocates (IMCA)

New role created with the MCA 2005 to help make decisions for people who lack capacity and no family or friends appropriate to make important decisions regarding:

• serious medical treatment, and / or • changes of accommodation

– Admissions for >28 days in hospital – Moves to care homes >8 weeks)

• in care reviews• where an allegation of abuse has been madeOnly exception is emergency, life-saving treatment

Lasting Power of Attorney (LPA)

A Lasting Power of Attorney allows a patient (plan ahead) by appointing someone to make certain decisions on his/her behalf after he/she loses capacity

There are 2 types:• LPA for health and welfare • LPA for property and financial affairs

One can choose to make one type of Lasting Power of Attorney or both

Health and Welfare LPA

This allows choice of one or more people to make decisions about things like:

• Daily routine (e.g. food and clothes)

• Medical care

• Moving into a care home

• Refusing life-sustaining treatment

Property and Financial Affairs LPA

This allows choice of one or more people to make decisions about money and property e.g:

• paying bills

• collecting benefits

• selling your home

Court Appointed Deputy (CAD)

The MCA 2005 establishes a specialised Court of Protection to deal with issues arising from disputes about mental capacity

• Under section 16(2) the CoP can appoint a CAD if it believes that a patient may lack capacity in:– Managing of his/her property and affiars– His/her personal welfare or healthcare

Pre-Test Answers

Source:


Re T (Adult) [1992] 4 All ER 649

• T, a 20-year-old pregnant woman, injured in a car accident, developed complications needing blood transfusions. She did not indicate on admission that she was opposed to receiving blood

• After spending some time with her mother, (a practising Jehovah's Witness) she decided to refuse the treatment

• What would you have done?

Court of Appeal’s Decision

Coercion/pressure on consent

The Court of Appeal considered that T had been pressurised by her mother and that her ability to decide about the transfusions was further impaired by the drugs with which she was being treated. The Court allowed the blood transfusions to proceed.– A patient’s consent to a particular treatment

may not be valid if given under pressure or duress exerted by another person

St George's Healthcare NHS Trust v S; R v Collins and others, ex parte S [1998]

• S, diagnosed with pre-eclampsia was admitted to hospital for induction of labour, but refused as she did not agree with medical intervention in pregnancy.

• Although competent and not suffering from mental illness, S was detained for assessment under the Mental Health Act. A judge made a declaration overriding the need for her consent to treatment, and her baby was delivered by caesarean section.

What do you think of this civil “sectioning”?Did the Judge act correctly?Was the judgement right or wrong?

Court of Appeal’s Decision: -False and incomplete information

The Appeal Court held that:• S’s right to autonomy had been violated, her

detention had been unlawful & motivated by the need to treat pre-eclampsia

• That the judicial authority for the caesarean had been based on false and incomplete information– A competent woman can refuse treatment even if it

may result in harm to self or unborn child

– Patients cannot lawfully be detained and compulsorily treated for a physical condition under the terms of the Mental Health Act

Re MB [1997] 38 BMLR 175 CA – Capacity to refuse Adult treatment

• MB needed a caesarean section, but panicked and withdrew consent at the last moment because of needle phobia. The hospital obtained a judicial declaration that it would be lawful to carry out the procedure, a decision that MB appealed

• However, she subsequently agreed to induction of GA and her baby was born by caesarean section

• Did MB lack capacity or not?• What do you think of the judicial declaration?

Court of Appeal’s Decision:- Temporary Impairment of Capacity• The Court of Appeal upheld the judges' view that MB had

not, at the time, been competent to refuse treatment, taking the view that her fear and panic had impaired her capacity to take in the information given and the proposed treatment

An individual’s capacity to make particular decisions:• May fluctuate or • Be temporarily affected by factors such as pain, fear,

confusion or the effects of medication.• Assessment of capacity must be time and decision-

specific.

Summary

We have covered:

• Principles of obtaining valid consents

• Lack of capacity, mental disorder; and what constitutes best interest

• Common limitations and some medico-legal aspects of consenting

mandatory training on valid consents & mental capacity (2)

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