IT’S MAKE YOUR MIND IT’S MAKE YOUR MIND UP TIME !!UP TIME !!

ADVENTURES IN MENTAL ADVENTURES IN MENTAL CAPACITYCAPACITY

DR E C KOMOCKIDR E C KOMOCKI

CONSULTANT IN OLD AGE PSYCHIATRISTCONSULTANT IN OLD AGE PSYCHIATRIST

CASE EXAMPLE - BTCASE EXAMPLE - BT80yr old lady with mild LD80yr old lady with mild LD

Lives with son + friend – both with LD too!!Lives with son + friend – both with LD too!!

IDDM with bilateral gangrenous legsIDDM with bilateral gangrenous legs

Needs hospital but refusesNeeds hospital but refuses

GP asks for assessment and “HELP!!!”GP asks for assessment and “HELP!!!”

Seen at home – squalid and malodorousSeen at home – squalid and malodorous

““This is my chair and I want to die in it…I know my This is my chair and I want to die in it…I know my time has come…not going to have my legs off…I’ll time has come…not going to have my legs off…I’ll die of blood poisoning!!!”die of blood poisoning!!!”

What do you do now?What do you do now?

THE DILEMAS OF CAPACITYTHE DILEMAS OF CAPACITY

ALL ASSUMED TO HAVE CAPACITYALL ASSUMED TO HAVE CAPACITY

ASSESSOR’S TASK IS TO DETERMINE WHETHER ASSESSOR’S TASK IS TO DETERMINE WHETHER CAPACITY MAY BE IMPAIREDCAPACITY MAY BE IMPAIRED

THOSE WITH CAPACITY MAKE DECISIONS FOR THOSE WITH CAPACITY MAKE DECISIONS FOR THEMSELVES, REGARDLESS OF HOW THEMSELVES, REGARDLESS OF HOW

ECCENTRIC, DANGEROUS OR LIFE-ECCENTRIC, DANGEROUS OR LIFE-THREATENING THAT DECISION MAY BETHREATENING THAT DECISION MAY BE

AUTONOMY OVERRIDES SANCTITY OF LIFE!!AUTONOMY OVERRIDES SANCTITY OF LIFE!!

NO CAPACITY THEN TAKE HEED!!!NO CAPACITY THEN TAKE HEED!!!

WHY IS CAPACITY IMPORTANT WHY IS CAPACITY IMPORTANT TO THE PATIENT?TO THE PATIENT?

ADVANCE PLANNINGADVANCE PLANNING

““The Greying of the Nation”The Greying of the Nation”

Advances in medical treatments (eg. ACEI’s)Advances in medical treatments (eg. ACEI’s)

Wills, finances, illness management, end of life decisionsWills, finances, illness management, end of life decisions

PREVENTION OF ABUSEPREVENTION OF ABUSE

Medical paternalism, institutionalisation, misplaced trustMedical paternalism, institutionalisation, misplaced trust

PERSON-CENTRED CAREPERSON-CENTRED CARE

Clinician assumptions vs patient objectivesClinician assumptions vs patient objectives

Bridson et al (2003), Jones (2005), Jones (2006)Bridson et al (2003), Jones (2005), Jones (2006)

WHY IS CAPACITY IMPORTANT WHY IS CAPACITY IMPORTANT TO THE DOCTOR?TO THE DOCTOR?

PATIENT EXPECTATIONSPATIENT EXPECTATIONS

Doctor no longer “knows best”Doctor no longer “knows best”

Patient/carer access to medical informationPatient/carer access to medical information

Government pledges of “greater user involvement”Government pledges of “greater user involvement”

SELF-PRESERVATIONSELF-PRESERVATION

Avoidance of litigation/complaintsAvoidance of litigation/complaints

LEGAL CASES AND INQUIRIESLEGAL CASES AND INQUIRIES

Alderhay, Bournewood, Kingsway etcAlderhay, Bournewood, Kingsway etc

THE MENTAL CAPACITY ACT 2005THE MENTAL CAPACITY ACT 2005

Jones (2005), Jones (2006)Jones (2005), Jones (2006)

THE PRINCIPLES OF CAPACITY THE PRINCIPLES OF CAPACITY ASSESSMENTS 1ASSESSMENTS 1

FUNCTIONALFUNCTIONAL Components of decision-making process analysedComponents of decision-making process analysed

OUTCOMEOUTCOME

Quality of decision based on projected consequences of Quality of decision based on projected consequences of that particular course of action that particular course of action

STATUSSTATUS

Quality of decision based upon an attributeQuality of decision based upon an attribute

LAW COMMISSION STATES “FUNCTIONAL”LAW COMMISSION STATES “FUNCTIONAL”

Law Commission (1995), Bellhouse et al (2001)Law Commission (1995), Bellhouse et al (2001)

Case Example - PICase Example - PI

72yr old lady with long psychiatric history72yr old lady with long psychiatric history

Now living with relativesNow living with relatives

12/12 Hx of abdominal swelling12/12 Hx of abdominal swelling

Gynaecology assessment “needs surgery”Gynaecology assessment “needs surgery”

Refuses so psychiatric opinion soughtRefuses so psychiatric opinion sought

No evidence of psychosis until - “Those aren’t No evidence of psychosis until - “Those aren’t my legs!!!”my legs!!!”

Further questions uncovered anatomically-Further questions uncovered anatomically-specific delusions!! specific delusions!!

CASE EXAMPLE - PICASE EXAMPLE - PI

STATUS ASSESSMENT STATUS ASSESSMENT --

“ “Psychiatric patient so no capacity” ORPsychiatric patient so no capacity” OR

“ “No evidence of psychosis so has capacity”No evidence of psychosis so has capacity”

OUTCOME ASSESSMENT OUTCOME ASSESSMENT ––

“ “Probable carcinoma and poor quality of life”Probable carcinoma and poor quality of life”

FUNCTIONAL ASSESSMENT FUNCTIONAL ASSESSMENT ––

“ “Does not believe the information so no capacity”Does not believe the information so no capacity”

Had surgery under Common Law (and protest!!)Had surgery under Common Law (and protest!!)

THE PRINCIPLES OF CAPACITY THE PRINCIPLES OF CAPACITY ASSESSMENTS 2ASSESSMENTS 2

UNDERSTAND AND BELIEVE THE INFORMATION UNDERSTAND AND BELIEVE THE INFORMATION GIVENGIVEN

EXPLANATION IN BROAD MEDICAL TERMSEXPLANATION IN BROAD MEDICAL TERMS

Nature of interventionNature of intervention

Purpose of interventionPurpose of intervention

Risks/benefits of interventionRisks/benefits of intervention

Risks/benefits of non-interventionRisks/benefits of non-intervention

Risks/benefits of alternative therapiesRisks/benefits of alternative therapies

CASE EXAMPLE – PICASE EXAMPLE – PI Bellhouse et al (2001), Jones (2006)Bellhouse et al (2001), Jones (2006)

PRINCIPLES OF CAPACITY PRINCIPLES OF CAPACITY ASSESSMENTS 3ASSESSMENTS 3

RETAIN THE INFORMATION LONG ENOUGH TO RETAIN THE INFORMATION LONG ENOUGH TO REACH A DECISIONREACH A DECISION

SHORT TERM MEMORY LOSS DOES NOT SHORT TERM MEMORY LOSS DOES NOT NECESSARILY IMPLY INCAPACITYNECESSARILY IMPLY INCAPACITY

CASE EXAMPLE – RWCASE EXAMPLE – RW

Solicitor unhappy with decision to give POASolicitor unhappy with decision to give POA

Joint meeting…satisfied requirements of capacityJoint meeting…satisfied requirements of capacity

5 mins later…”Who ARE you?!!”5 mins later…”Who ARE you?!!”

Repeated whole process…FOUR times!!Repeated whole process…FOUR times!!

Consistent every time so POA agreed Consistent every time so POA agreed Jones (2006)Jones (2006)

PRINCIPLES OF CAPACITY PRINCIPLES OF CAPACITY ASSESSMENT 4ASSESSMENT 4

USE AND WEIGH UP INFORMATION USE AND WEIGH UP INFORMATION RELEVANT TO THE DECISIONRELEVANT TO THE DECISION

BEWARE -BEWARE -

Circumstances influencing decision-makingCircumstances influencing decision-making

Lack of adherence to perceived “Best Interests”Lack of adherence to perceived “Best Interests”

Undue influence of othersUndue influence of others

PERSON-CENTRED APPROACHPERSON-CENTRED APPROACH

Bridson et al (2003), Jones (2006)Bridson et al (2003), Jones (2006)

CASE EXAMPLE - RHCASE EXAMPLE - RH72yr old male referred by A+E72yr old male referred by A+E

OD following charge of raping grand-daughterOD following charge of raping grand-daughter

Family circumstancesFamily circumstances

Informal admission for assessmentInformal admission for assessment

No evidence of mental illness No evidence of mental illness

Discharge ward round with all involvedDischarge ward round with all involved

Concerns – future prospects, family influence and Concerns – future prospects, family influence and CotmanhayCotmanhay

Had full capacity so discharged with supportHad full capacity so discharged with support

Outcome?Outcome?

PRINCIPLES OF CAPACITY PRINCIPLES OF CAPACITY ASSESSMENT 5ASSESSMENT 5

COMMUNICATE THE DECISION BY COMMUNICATE THE DECISION BY WHATEVER MEANS POSSIBLEWHATEVER MEANS POSSIBLE

VerbalVerbal

WrittenWritten

Sign languageSign language

“ “Even by the controlled flicker of a muscle!!”Even by the controlled flicker of a muscle!!”

Jones (2006)Jones (2006)

PRINCIPLES OF CAPACITY PRINCIPLES OF CAPACITY ASSESSMENT 6ASSESSMENT 6

STRATEGIES TO ENHANCE ASSESSMENTSTRATEGIES TO ENHANCE ASSESSMENT

CommunicationCommunication

Simplify informationSimplify information

Treat temporary physical/psychiatric conditionsTreat temporary physical/psychiatric conditions

Accommodate spiritual beliefsAccommodate spiritual beliefs

Avoid therapeutic coercionAvoid therapeutic coercion

ENSURE GOOD RECORD-KEEPINGENSURE GOOD RECORD-KEEPING

Reasoning not just factsReasoning not just facts

Bellhouse et al (2001), Bridson et al (2003)Bellhouse et al (2001), Bridson et al (2003)

CASE EXAMPLE - BTCASE EXAMPLE - BT

Has capacity despite LDHas capacity despite LD

““I’ve got diabetes and gangrene”I’ve got diabetes and gangrene”

““You’re a nice lad Edward! Call again!!”You’re a nice lad Edward! Call again!!”

““I know I might die, but this is my chair!”I know I might die, but this is my chair!”

““And you can tell the ‘Sister of f**king And you can tell the ‘Sister of f**king Mercy’ that as well!!”Mercy’ that as well!!”

Son and friend vacantly nodding!!Son and friend vacantly nodding!!

So, she stays at home!!So, she stays at home!!

THE NEW MENTAL CAPACITY THE NEW MENTAL CAPACITY ACT 1ACT 1

WHAT DOES THE NEW ACT DO?WHAT DOES THE NEW ACT DO?

Determines decision-making responsibility for health, welfare Determines decision-making responsibility for health, welfare and financial issuesand financial issues

Maintains right of capable over 16yr olds to make Maintains right of capable over 16yr olds to make autonomous decisionsautonomous decisions

Allows decisions to be made in advance of incapacityAllows decisions to be made in advance of incapacity

Incapable and no prior decisions – best interestsIncapable and no prior decisions – best interests

New criminal offence – neglect/abuse of the incapableNew criminal offence – neglect/abuse of the incapable

NEW ACT DOES NOT –NEW ACT DOES NOT –

Allow euthanasia or assisted suicideAllow euthanasia or assisted suicide

Jones (2006), Hopkinson (2006)Jones (2006), Hopkinson (2006)

THE NEW MENTAL CAPACITY THE NEW MENTAL CAPACITY ACT 2ACT 2

ENHANCES THE PRINCIPLES OF CAPACITYENHANCES THE PRINCIPLES OF CAPACITY

Capacity presumed unless proven otherwiseCapacity presumed unless proven otherwise

Capacity is decision specificCapacity is decision specific

Enablement of the decision-making processEnablement of the decision-making process

ALLOCATES SPECIFIC RESPONSIBILITIESALLOCATES SPECIFIC RESPONSIBILITIES

Laypersons and professionals Laypersons and professionals

Statutory duty to the incapableStatutory duty to the incapable

Accountable for their actionsAccountable for their actions

Legal duty to follow MCA 2005 “Code of Practice”Legal duty to follow MCA 2005 “Code of Practice”

Jones (2005), Jones (2006), Hopkinson (2006)Jones (2005), Jones (2006), Hopkinson (2006)

THE NEW MENTAL CAPACITY THE NEW MENTAL CAPACITY ACT 3ACT 3

MAIN NEW DEVELOPMENTS –MAIN NEW DEVELOPMENTS –

CLARIFICATION OF BEST INTERESTSCLARIFICATION OF BEST INTERESTS

ADVICE ON RESTRAINTADVICE ON RESTRAINT

LASTING POWER OF ATTORNEY LASTING POWER OF ATTORNEY

POWER OF COURT OF PROTECTIONPOWER OF COURT OF PROTECTION

INDEPENDENT MENTAL CAPACITY ADVOCATESINDEPENDENT MENTAL CAPACITY ADVOCATES

ADVANCE DECISION-MAKINGADVANCE DECISION-MAKING

THE NEW MENTAL CAPACITY THE NEW MENTAL CAPACITY ACT 3ACT 3

MAIN NEW DEVELOPMENTS –MAIN NEW DEVELOPMENTS –

CLARIFICATION OF BEST INTERESTSCLARIFICATION OF BEST INTERESTS

ADVICE ON RESTRAINTADVICE ON RESTRAINT

LASTING POWER OF ATTORNEY LASTING POWER OF ATTORNEY

POWER OF COURT OF PROTECTIONPOWER OF COURT OF PROTECTION

INDEPENDENT MENTAL CAPACITY ADVOCATESINDEPENDENT MENTAL CAPACITY ADVOCATES

ADVANCE DECISION-MAKINGADVANCE DECISION-MAKING

BEST INTERESTSBEST INTERESTS

FOR PERSONS LACKING CAPACITYFOR PERSONS LACKING CAPACITY

11STST STEP – WILL THEY REGAIN CAPACITY? STEP – WILL THEY REGAIN CAPACITY?

CONSIDER –CONSIDER –

Wishes/feelings previously expressedWishes/feelings previously expressed

Beliefs/values which might influence decisionBeliefs/values which might influence decision

New circumstantial factorsNew circumstantial factors

ENGAGE AND CONSULT WITH –ENGAGE AND CONSULT WITH –

Named person/present carer/LPA/COP deputyNamed person/present carer/LPA/COP deputy

DECIDE “AS THEY WOULD HAVE DONE”DECIDE “AS THEY WOULD HAVE DONE”

Jones (2005), Jones (2006)Jones (2005), Jones (2006)

CASE EXAMPLE - KBCASE EXAMPLE - KB

64yr old lady with profound Alzheimers Disease64yr old lady with profound Alzheimers Disease

Marked challenging behavioursMarked challenging behaviours

Develops rectal prolapseDevelops rectal prolapse

Initially reducible – now irreducible, bleeding and Initially reducible – now irreducible, bleeding and causing pain and distresscausing pain and distress

Worsening in challenging behavioursWorsening in challenging behaviours

Previously expressed “fear of operations”Previously expressed “fear of operations”

Confirmed by husbandConfirmed by husband

REFER FOR SURGERY?REFER FOR SURGERY?

ADVANCE-DECISION MAKING 1ADVANCE-DECISION MAKING 1IN PREPARATION –IN PREPARATION –

Have capacityHave capacity

Refusal of specific treatment + circumstancesRefusal of specific treatment + circumstances

Oral or written (preferably with witnesses)Oral or written (preferably with witnesses)

Can contain treatment “desired” but doctor not obliged Can contain treatment “desired” but doctor not obliged

INITIATED –INITIATED –

Patient becomes incapablePatient becomes incapable

Clinical circumstances ariseClinical circumstances arise

AD followed “even if life is at risk”AD followed “even if life is at risk”

Other unspecified treatments – Best InterestsOther unspecified treatments – Best Interests

Williams et al (2004),Jones (2006), Hopkinson (2006)Williams et al (2004),Jones (2006), Hopkinson (2006)

ADVANCE-DECISION MAKING 2ADVANCE-DECISION MAKING 2

INVALIDATED –INVALIDATED –

Doubts expressed about capacity when drawn upDoubts expressed about capacity when drawn up

Withdrawn when capableWithdrawn when capable

Capable when treatment neededCapable when treatment needed

New circumstances/treatments not anticipatedNew circumstances/treatments not anticipated

Psychiatric treatment to be given under MHA (1983)Psychiatric treatment to be given under MHA (1983)

DISPUTES REFERRED TO COPDISPUTES REFERRED TO COP

QUESTION – HOW FAR DO YOU GO TO QUESTION – HOW FAR DO YOU GO TO DETERMINE THE EXISTANCE OF AN AD?DETERMINE THE EXISTANCE OF AN AD?

Williams et al (2004), Thomas et al (2004), Jones (2005)Williams et al (2004), Thomas et al (2004), Jones (2005)

CASE EXAMPLE - ??CASE EXAMPLE - ??

Reported in BMJReported in BMJ

Elderly lady found collapsedElderly lady found collapsed

Taken to A+E and resuscitatedTaken to A+E and resuscitated

FURIOUS!!! Had AD specifying DNAR!!!FURIOUS!!! Had AD specifying DNAR!!!

Self-dischargeSelf-discharge

Some time later, same circumstances!!Some time later, same circumstances!!

Rushed to A+E to be resuscitatedRushed to A+E to be resuscitated

Tattooed on chest “DNAR”!!!Tattooed on chest “DNAR”!!!

Similar case – covered with sticking plaster!!!Similar case – covered with sticking plaster!!!

CASE EXAMPLE - BTCASE EXAMPLE - BT

Maybe some ambivalenceMaybe some ambivalence

Gangrene develops – delirious and so Gangrene develops – delirious and so lacking in capacitylacking in capacity

Could admit under Common LawCould admit under Common Law

OR, remains opposedOR, remains opposed

Becomes deliriousBecomes delirious

Cannot admit as previous wishes clearly Cannot admit as previous wishes clearly stated when capacity was intactstated when capacity was intact

SUMMARYSUMMARY

ASSESSMENT OF CAPACITY WILL BE ASSESSMENT OF CAPACITY WILL BE EVERYBODY’S BUSINESSEVERYBODY’S BUSINESS

REFERRAL TO PSYCHIATRIST IF REFERRAL TO PSYCHIATRIST IF CONTENTIOUS/DIFFICULTCONTENTIOUS/DIFFICULT

URGENT SITUATIONS – USE BEST INTERESTS URGENT SITUATIONS – USE BEST INTERESTS WITHOUT FEAR OF LITIGATIONWITHOUT FEAR OF LITIGATION

ALWAYS CHECK FOR THE TATTOO!!ALWAYS CHECK FOR THE TATTOO!!