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Understand the rules on incapacity

The wishes, however illogical, of a patient with capacity should be followed, says Dr Tom Lloyd.

The Mental Capacity Act 2005, fully effective from October 2007, is good news for GPs. It provides a framework that will assist doctors caring for patients over 16 years of age who lack the ability to make decisions.

Weighing up when - and when not - to make a decision on behalf of a patient has always been a major challenge, especially when there are so many conflicting interests.

The difficulties in judging the mental capacity of a patient and their ability to make decisions regarding their own welfare are now addressed through a set of principles (see box).

A common scenario
You are asked to see an 83-year-old lady with a severe chest infection. You feel that she should be admitted as she is very unwell. The patient refuses, stating that if she is to die, then she would rather die at home.

Her daughter is also present and states that she is the patient's advocate under a lasting power of attorney, and she demands that you admit her mother to hospital. How should you handle this situation?

This scenario - in which the stated wishes of a patient and a relative are at odds - is fairly frequent in general practice. It is especially common for relatives of very elderly people to feel that they know best when it comes to making big decisions, especially regarding their life expectancy.

Judging capacity
The Mental Capacity Act provides a presumption that people have capacity unless proven otherwise. Everything possible should be done to assist them in making their own decisions, including making a full assessment of the patient's capacity. The Act lays out a basic format for such an assessment.

In the scenario described above, the doctor should assess whether the patient has an 'impairment of the mind' (temporary or permanent) and, if so, whether they cannot make the decision that is in question.

To assess the decision-making element, the Act provides four points. The patient should be able to:

  • Understand the decision to be made.
  • Retain that information in their mind.
  • Use that information as part of the decision-making process.
  • Communicate their decision (by talking, using sign language or any other method).

In this case, the fact that the patient is elderly should not lead to an assumption that she lacks capacity. If the GP is unsure, then a suitable second opinion should be sought.

Power of attorney
The lasting power of attorney (LPA) replaces the former enduring power of attorney, although enduring powers already created can continue.

The LPA allows others to make decisions on behalf of a patient and specifies two types of attorney: property and affairs, and personal welfare. The latter type is relevant to the patient's healthcare

A personal welfare attorney can only act when the patient lacks capacity. They can consent and refuse medical care on behalf of an individual, unless the individual has specified any circumstances in advance.

This does not mean that specific treatment can be demanded in advance; nor can an advocate refuse life-sustaining treatment, unless this was specified by the patient at the time the LPA was created.

Decision time
Any decision made by a patient who retains full capacity must be respected - no matter how irrational it may appear. It is important to record the patient's decision, together with any accompanying discussions, in the notes. In cases where the decision made is likely to shorten life expectancy, it is best to have a witness present.

Subject to the patient's agreement, it is advisable to have careful discussions with relatives, ensuring that they are involved in any future treatment plan.

If the patient in the scenario is assessed as lacking capacity, the type and specifics of any LPA should be discussed with the daughter. If she is a personal welfare advocate, and the patient has not included any specific wishes in the LPA, then a best interest decision should be made.

If there is disagreement between the doctor and an advocate, then the Court of Protection or its Scottish or Northern Irish equivalent should become involved. In the meantime, the patient should continue to be treated.

Dr Lloyd is a medicolegal adviser at Medical Protection Society, www.medicalprotection.co.uk

Principles of the Act

  • A person must be assumed to have mental capacity unless it is established that they lack capacity.
  • A person is not to be deemed unable to make a decision unless all practical steps to help them to do so have been taken without success.
  • A person is not to be deemed incapacitated because they make an unwise decision.
  • A decision made on behalf of a person who lacks capacity must be done in their best interests.
  • The decision should be the least restrictive their rights.

What to consider when assessing Best Interests

  • Consider whether the patient is likely to regain capacity. Can the decision wait?
  • Take into account all relevant circumstances that the individual would or might have considered in making the decision themselves.
  • Explore past verbal or written views, past behaviour, cultural, religious and moral values that might have influenced a decision.
  • Consult others; this includes friends, family, carers, attorney appointed under an LPA or enduring power of attorney.

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