Competence, consent and Coercion: A medico-legal conundrum. Dr Rees Tapsell Ms Meenal Duggal

Transcription

1 Competence, consent and Coercion: A medico-legal conundrum Dr Rees Tapsell Ms Meenal Duggal

2 Overview Clinical Context Consultation Liaiosn services within a general hospital Legal commentry

3 Clinical Scenario Mr Clarke Kent (Clarke)-56, single, Invalids benificiary Chronic residual SCZ Minimal residual symptoms, mild cognitive impairment-? progressive Living in level 4 supervised accommodation

4 Consultation-Liaison psychiatry (CLP) Branch of psychiatry that interacts with other medical specialties Jorsch MS. Somatoform disorders: the role of CLP. International Review of Psychiatry, February 2006; 18(1); 61-65

5 Consultation-Liaison psychiatry (CLP) Liaison Psychiatry is the subspecialty of general psychiatry that is concerned with the management of psychiatric illness in general hospital settings. It is more about the integration of psychiatry into medicine than about merely liaising with it. Sharpe M. Psychological medicine and the Future of Psychiatry. BJP 2014; 204, 91-94) Usually occurs on a (general) hospital campus

6 Ethical and professional assumptions when CLP review referred patients (Possible) psychiatric disorder co-existence Specific psychiatric consultation request Opinions only CLP do not own the patient s overall care. Behavioural & IP / communication problems i.e. the difficult patient / caregiver Biopsychosocial approach (integration; holism) Every patient is capable (i.e. possesses CAPACITY) of providing informed consent (i.e. COMPETENT) Advocacy role for the patient Patient disempowerment by the sick role Families directing health care

7 CLP scenarios & ethics Discharge arrangements rest home, Discharge AMA Delirium (hyperkinetic-type) restraint required BPSD wandering, aggression etc. Medical intervention required in a patient with chronic, stable psychiatric condition can a patient with a chronic psychiatric condition provide informed consent? Previous psychiatric label requiring treatment for a medical condition and the patient refuses. Active psychotic illness requiring medical intervention e.g. toxic mega-colon in patient with SCZ who is on clozapine (+/- mild ongoing mild delusions).

8 Capacity assumptions Capacity is always presumed. Patients have the right to make unwise decisions or decisions that medical staff personnel don t agree with. All practical steps must be taken to help patients make a decision for themselves. Capacity assessment is ALWAYS decision specific. Capacity may F L U C T U A T E with mental conditions e.g. delirium, psychosis, mood variations etc. Therefore capacity assessments must be made and documented at the time when the decision in question needs to be made. The only time total incapacity exists is when patients are in coma.

9 Capacity / competency assessment Capacity assessment is the cognitive capacity to understand and make decisions and to appreciate contexts in which decisions must be made and is NOT outcomes focused: Is not related to daily functioning (functional capacity, dependence and independence measures) Is not related to preferred outcome of beneficence, success or thriving. Does not take into account a diagnosis e.g. schizophrenia, Alzheimer s etc. For example, the presence of mental illness does not imply incapacity. Does not take into account the actual choices made but is the capacity to make decisions. Incapacity is often reversible.

10 To lack capacity, two conditions must apply: An individual must be found to suffer from an impairment of or disturbance in the functioning of the brain or mind (MCA) The individual must be unable to make the relevant decisions at the RELEVANT time because of the IMPAIRMENT, and due to the lacking of ONE or more of the following abilities: The ability to u n d e r s t a n d The ability to r e t a i n i n f o r m a t i o n relevant to the decision. The ability to use and w e i g h t h a t i n f o r m a t i o n as part of the process of making the decision. The ability to c o m m u n i c a t e t h e i r d e c i s i o n.

11 Consent Every human being of adult years and sound mind has a right to determine what shall be done with his [or her] own body (Scholendorff v Society of New York Hospital, 1914)

12 New Zealand Bill of Rights Act 1990 Section 11: Everyone has the right to refuse to any medical treatment undergo

13 Code of Health and Disability Services Consumers Rights 1996 Right 7(1): Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent except where the law allows otherwise.

14 Code of Rights Right 7(2) Every consumer is presumed to be competent unless there are reasonable grounds for believing otherwise. Diagnosis of mental illness reasonable grounds?

15 Code of Rights Right 7(3): Where a consumer has diminished competence, they retain the right to give informed consent to the extent that is appropriate for their level of competence A spectrum of competence and also of seriousness of decision

16 Mental Health (Compulsory Treatment and Assessment) Act 1992 Allows compulsory treatment for mental disorder Retains emphasis on patient consent s59 Elaborate mechanisms for review of compulsory treatment orders

17 Treatment without consent Treatment may be provided to incompetent patients in the following circumstances: Emergencies Another person is legally entitled to consent Right 7(4) Valid advanced directive Court order

18 Emergency Treatment of an incompetent person is allowed in an emergency without consent if: a) It is necessary to preserve life, health and well being; and b) Is in the best interests of the person.

19 Emergency However, treatment is not justified if: It is contrary to the known wishes of a competent person; Exceeds what is needed to treat the emergency situation

20 Consent from another person Spouses, next of kin and family members do not have a general right to provide consent in the law Only people who are an Enduring Power of Attorney or a Welfare Guardian can provide legally effective consent Guardians of children under 16 (but bear in mind Gillick or the competent child )

21 Right 7(4) Allows treatment of an incompetent where: No-one else can provide consent, and The treatment is in the best interests of the person, and Reasonable steps have been taken to ascertain the view of the person and treatment is consistent with their informed choice, or

22 Right 7(4) If the persons views cannot be ascertained, you have considered the views of suitable persons who are interested in the welfare of the person.

23 Advanced Directive Advance directives give or withhold consent to future care and are valid if: Person was competent when it was made, Sufficiently informed to make a decision, Free from coercion or duress, Intended the advance directive to apply to the situation

24 Advance Directive These should be followed but do need close scrutiny if there are any doubts about validity

25 Court Orders Protection of Personal and Property Rights Act 1988: Court can make a personal order (including for specific treatment or a move to a rest home), or Appoint a welfare guardian / property manager

26 Court Orders Care of Children Act 2004 Court makes guardianship orders