CENTRES 8 th International Clinical Ethics Conference Mental Health - Challenges in Clinical Ethics

Transcription

1 CENTRES 8 th International Clinical Ethics Conference Mental Health - Challenges in Clinical Ethics Primer 1: Mental Capacity Assessments for Treatment Date: 30 th October 2018 Venue: NUSS Kent Ridge Guild House Speaker: Dr Giles Tan FRCPsych MRCPsych MMed(Psychiatry) MBBS FAMS(Psychiatry) Senior Consultant & Psychiatrist, Institute of Mental Health, Singapore

2 Outline Brief introduction to the Mental Capacity Act Assessing mental capacity for treatment decisions Mental capacity, legal competence and consent to treatment

3 Mental Capacity Act Brief Introduction Person who Lacks Mental Capacity Source of slide: Courtesy of OPG Office of the Public Guardian Lasting Power of Attorney The 5 Principles Court Appointed Deputies Excluded Decisions Code of Practice Ill-Treatment Care Givers S3(1) (5) S11-S18 S19-S25 S7-S10 S26-S29 S41 S42 S30-S35

4 Mental Capacity Act 5 Statutory Principles Assume a person has capacity unless the opposite is proven Take all practicable steps to help a person make their own decision A person has the right to make an unwise decision Always act in the person s best interests Choose the less restrictive option

5 2-stage test: 1. Clinical Test Mental Capacity Act Assessing Mental Capacity The patient is suffering from an impairment or disturbance that affects the function of the brain or mind, and Code of Practice list some conditions: Stroke Brain Injury Dementia Mental health problems Intellectual disabilities

6 2. Functional Test Mental Capacity Act Assessing Mental Capacity That impairment or disturbance causes the patient s inability to make a decision at a particular time For the purposes of section 4, a person is unable to make a decision for himself if he is unable to understand the information relevant to the decision; to retain that information; to use or weigh that information as part of the process of making the decision; or to communicate his decision (whether by talking, using sign language or any other means)

7 Mental Capacity Act Assessing Mental Capacity Time sensitive and Decision specific Temporary lack of mental capacity Eg. subdural haematomas, brain tumours and septic encephalopathy Delay the capacity assessment till capacity improves Fluctuating mental capacity Eg. mild dementia, delirium and schizophrenia Assess on multiple occasions or wait for optimal mental state to undertake capacity assessment Ng et al, Singapore Med J 2015; 56(12): , Importance of mental capacity: time for greater attention and action

8 Unwise decisions Mental Capacity Act Assessing Mental Capacity often arises when the patient disagrees with his physician s treatment plan and the decisional capacity of the patient is thus challenged Establish if there is impairment of or disturbance in the functioning of the mind or brain Such decisions are usually consistent with the patient s character and core values

9 Mental Capacity Act Surrogate Decision making Consider if there is a Lasting Power of Attorney (LPA) or Court Appointed Deputy All decisions made on behalf of persons lacking capacity must be made in their best interests An Office of the Public Guardian has been set up to perform a range of functions that enhances the protection of those who are mentally incapacitated

10 Mental Capacity Act Surrogate Decision making Common misconception: Patient s relatives have the right to make decisions on behalf of the patient who may lack mental capacity no such legal right

11 Good practice: Mental Capacity Act Surrogate Decision making Involve the patient s relatives in the treatment decision-making process if the patient is agreeable If the patient has lost the capacity to make treatment decisions, the patient s relatives should be consulted as part of the best interests decision-making process under the MCA

12 Mental Capacity Act Best interest principle Best interest is often determined in a specific situation after taking into account the patient s values and preferences, if they are known If not, the views of persons who have an interest in the welfare of the patient (usually the patient s relatives) are crucial in the decision-making process The best available and least restrictive option in the specific situation should be used Rarely are judgements on the patient s best interest made based on the physician s values and preferences

13 Mental Capacity Act Emergency situation and life-sustaining treatments In an emergency situation or a serious medical condition where a decision concerning life-sustaining treatment needs to be made, it is the physician who must make the decision

14 Mental Capacity Act

15 Buchanan, J R Soc Med Sep;97(9):415-20, Mental capacity, legal competence and consent to treatment

16 Mental capacity, legal competence and consent to treatment When a patient refuses medical treatment, the law requires that their stated wishes be respected unless they can be shown not to be legally competent The law recognizes that mental capacity is a continuous quality that may be present to a greater or lesser extent Legal competence, however, cannot be present to a greater or lesser extent. A person is either entitled or not entitled, by law, to have their wishes respected regarding treatment

17 Proportionality Doctors have to decide, where someone s right to accept or refuse treatment is in doubt, whether that person s mental capacity is sufficient for legal competence and their stated wishes should therefore be respected Proportionality The amount of capacity required for legal competence increases in response to the gravity of the decision that the patient faces

18 Principles governing proportionality Principles governing proportionality Balancing Autonomy with Beneficence/Non-maleficence (Wellbeing) Leaving room for error (1) Balancing Autonomy with Wellbeing The more capacity someone has, the more likely that the benefit of respecting their autonomy will outweigh any cost to their wellbeing A balancing approach also has to establish what needs to be balanced. Definitions of wellbeing refer to the risks and benefits or risk benefit ratio of what is proposed The level of capacity required for legal competence rises with the extent to which the risks outweigh the benefits

19 Principles governing proportionality

20 Principles governing proportionality (2) Leaving room for error Raising the threshold level of capacity required for competence when the anticipated harm is greatest stems from a clinician s wish to be more certain It means leaving a greater margin for error when the consequences are serious Raising the threshold, of course, also increases the number of instances in which patients are incorrectly assessed as not legally competent Harm is then being done because their autonomous wishes are not respected

21 Principles governing proportionality

22 Principles governing proportionality This is a different type of harm from that of failing to act in the patient s best interests The source and level of doubt attaching to any conclusion regarding capacity should form part of any evidence going to determining legal competence The approach has an analogy in medical statistics - Instead of simply a mean, what is being required of doctors is a mean and standard deviation

23 Other considerations affecting proportionality Other considerations affecting proportionality Medical Ethics (beneficence and non-maleficence) Parsimony (extreme unwillingness)

24 (1) Medical Ethics Other considerations affecting proportionality The principle of beneficence and non-maleficence includes injunctions to do good and not to do harm The relationship between them is complex There are times when negative duties not to injure, for instance seem to outweigh positive duties to help others Eg. doctors do not consider it justifiable to kill a patient, whatever the prognosis, in order that others may benefit from the transplantation of that patient s organs

25 Other considerations affecting proportionality There are other times when a chance of benefit seems more important than a higher chance of doing harm, as when a risky procedure is justified by the prospect, however slim, of a cure

26 (2) Parsimony Other considerations affecting proportionality Respecting the patient s stated wishes can be a desirable end even when the patient lacks capacity and is legally incompetent There are instances where respecting a legally incompetent choice leads to some harm but where the alternative, going against the patient s wishes, will do more harm Eg. is the refusal of medication in circumstances where the harm of enforcing compliance exceeds the harm of the patient doing without

27 Other considerations affecting proportionality There is general medical and legal reluctance to intervene when a legally incompetent patient accepts treatment (Eg. Bournewood gap - Legal loophole that enabled adults without mental capacity but who were compliant to be hospitalized and treated for psychiatric problems without the procedural safeguards offered by the Mental Health Act 1983) Some will regard as too parsimonious an approach that allows a patient s lack of objection to prevent their capacity being fully assessed and appropriate safeguards put in place before decisions are made on their behalf

28 Summary Brief introduction to the Mental Capacity Act Assessing mental capacity for treatment decisions Mental capacity, legal competence and consent to treatment Proportionality Principles governing proportionality (1) Balancing Autonomy with Wellbeing (2) Leaving room for error Other considerations affecting proportionality (1) Medical Ethics (beneficence and non-maleficence) (2) Parsimony (extreme unwillingness)

29 Thank You Questions

30 Source pictures acknowledgements x624.png&imgrefurl=https%3A%2F%2Fwww.advisoryexcellence.com%2Fhow-long-does-a-mental-capacity-assessment-take%2F&docid=chJilP0DnsW_M&tbnid=0tuheNdHucwcKM%3A&vet=12ahUKEwi44Yq7nKzeAhUMdysKHS6kCj84ZBAzKAUwBXoECAEQBg..i&w=1030&h=624&itg=1&bih=579&biw=1280&q=mental%20capacity&v ed=2ahukewi44yq7nkzeahumdyskhs6kcj84zbazkauwbxoecaeqbg&iact=mrc&uact=8 wibozjdq6zeahxfp48khta5da44yaeqmyg_md96bagbeea&iact=mrc&uact=8