CONSENT WITHOUT CAPACITY

• The ‘decision maker’ is the person proposing to take action on behalf of a patient who lacks capacity, usually the consultant in charge of the patient’s care
• if the treating consultant is unavailable, his/her staff grade doctor or senior trainee (but no one less senior) may deputise, provided that the decision is endorsed by consultant at the earliest opportunity
• The decision maker must first determine what action would be in the ‘best interests’ of person lacking capacity
• take note of the statutory ‘best interests’ checklist under section 4 of the Mental Capacity Act

• Before reaching a conclusion about best interests:
• do not make assumptions about a person’s best interests merely on the basis of his/her age, appearance, condition or behaviour which might leave others to make unjustified assumptions about his/her capacity
• try to identify all matters and circumstances relating to decision in question, which are most relevant to person who lacks capacity
• consider whether person is likely to regain capacity. Can the decision wait until then?
• do whatever is possible to permit and encourage the person to participate, or to improve his/her ability to participate as fully as possible in making decision
• if the decision concerns provision or withdrawal of life-sustaining treatment, you must not be motivated by a desire to bring about the patient’s death. Do not make assumptions about the person’s quality of life
• Try to find out views of person lacking capacity, including:
• past and present wishes and feelings (and, in particular, any relevant written statement made when s/he had capacity)
• beliefs and values (e.g. religious, cultural or moral) that would be likely to influence the decision in question
• other factors that patient would be likely to consider if able to do so
• Consult other people, if it is practicable and appropriate to do so, for their views about patient’s best interests and obtain any information about patient’s wishes, feelings, beliefs or values
• but be aware of patient’s right to confidentiality
• In particular, seek views of:
• relatives and carers, partners, close friends
• any person previously named by person lacking capacity as someone to be consulted
• any person having reasonable claim to have his/her views taken into account
• if appointed, IMCA (see below), attorney of an LPA, court-appointed deputy
• healthcare professionals, including GPs and nursing homes, to establish premorbid health and quality of life, and ‘best interests’

• Involve all relevant disciplines
• Discuss with those who have an interest in the patient’s welfare or those with a statutory right to be involved (lasting power of attorney/court appointed deputy)

Lasting Power of Attorney

• Establish if patient has appointed an attorney under a LPA or a court-appointed deputy has been appointed (for health and welfare), for whatever reason, to act on patient’s behalf
• legal advice may be required to ascertain whether LPA is relevant to the situation
• where an attorney under an LPA has been appointed, it is his/her responsibility to inform clinicians
• hold the LPA in the medical records

Independent Mental Capacity Advocate

• If patient is judged to lack capacity has no one other than paid carers to look after them (i.e. no consultable friends or family), you must appoint an IMCA
• IMCA’s duty is to try and ascertain what would have been the patient’s wishes if s/he still had capacity
• Information provided by IMCA must be taken account of by the decision maker when deciding what is in the patient’s best interests
• the IMCA cannot decide what treatment is given; this rests with the decision maker
• To appoint an IMCA, contact the Safeguarding Team

• A person may make an advance decision under the Mental Capacity Act if s/he is aged ≥18 yr and has the capacity to make the decision
• If the advance decision refuses life-sustaining treatment, it must be in writing, be signed and witnessed, and state clearly that the decision applies even if life is at risk
• Ask about an advance decision (living will/advance directive or an LPA
• if there is evidence of any of these and you are unsure whether they apply, seek advice from Legal Services Department

• Deprivation of Liberty Safeguards (DoLS) are designed to ensure that any person lacking capacity to consent to care or treatment is suitably protected against arbitrary detention
• If the patient is under complete and effective control in respect of their care and movements, and not free to leave without permission, then an application should be made to the Local Authority for permission to deprive them of their liberty
• for advice, contact the Safeguarding Team

• Application to court may be necessary. Seek advice from Legal Services Department, where there is:
• lack of unanimity among clinicians as to patient’s condition, prognosis or ‘best interests’
• lack of unanimity about whether treatment is appropriate
• evidence that patient, when competent, would have wanted treatment either to be given or not given and this is contrary to views of clinicians
• evidence that patient resists or disputes proposed treatment
• anyone with a reasonable claim to have their views or evidence taken into account (such as a parent, relative, partner, close friend or long-term carer) who asserts that the proposed course of treatment or failure to treat is contrary to patient’s wishes or not in patient’s best interests

• Never use standard consent forms for adult patients unable to consent for themselves
• If an adult patient does not have capacity to give or withhold consent for a significant intervention, document this fact in form for adults unable to consent to investigation or treatment, along with
• assessment of patient’s capacity
• why healthcare professional believes treatment to be in patient’s best interests, and involvement of people close to the patient
• where second opinion sought, person giving second opinion should also sign form to confirm agreement with decision to proceed
• For more minor interventions, this information needs to be entered only in patient’s notes

When to apply to the Court of Protection

• The Court of Protection must be asked to make a decision on behalf of the patient when:
• the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a person in a permanent vegetative state or minimally conscious state where there is disagreement about what is in the patient’s best interests
• where it is proposed that a living person who lacks capacity to consent should donate an organ or bone marrow to another person
• the proposed non-therapeutic sterilisation of a person who lacks capacity to consent (e.g. for contraceptive purposes)
• where there is a dispute about whether a particular serious medical treatment will be in a person’s best interests
• In the above circumstances, contact the Legal Services Department