Medico-legal and ethical issues in Old Age Psychiatry. Dr Sophia Bennett, Consultant in Old Age and Liaison Psychiatrist

Transcription

1 Medico-legal and ethical issues in Old Age Psychiatry Dr Sophia Bennett, Consultant in Old Age and Liaison Psychiatrist

2 Aims To revise certain aspects of the Mental Capacity Act 2005; To understand concepts and legal cases relevant to Deprivation of Liberty; To review some of the basic methods of analyzing ethical problems; To increase awareness of the role of values in psychiatry and to consider values-based practice; To consider the importance of underlying philosophical notions to the practice of psychiatry. Learning outcomes Participants will learn about the Mental Capacity Act 2005 and consider problems around the notions of capacity and best interests; To deepen understanding of the issues around the interpretation of deprivation of liberty; With respect to old age psychiatry, participants should see how numerous clinical decisions are ethical decisions; Participants will understand better how various ethical theories and approaches (utilitarian, deontological, casuist, principlism, perspectivism and virtue ethics) contribute to the analysis of ethical dilemmas; Participants will see how value-based medicine complements evidence-based medicine in encouraging sound clinical decision-making; Participants will learn how different models of dementia require a broader understanding of personhood and how this in turn implies a particular view of the mind.

3 Objectives Provide an open forum for case discussions Help you feel confident in using the Mental Capacity Act to deliver appropriate care to people who lack capacity Increase expertise on assessing mental capacity Increase knowledge on process of arriving at best interests of non-capacitous individuals MCA vs MHA interface DOLS

4 Outline MCA 50 minutes Break 10 minutes DOLS 45 minutes Break 10 minutes Personhood, value, ethics (if people are absolutely desperate and interested and don t want to get home early )

5 The problem Capacity is a legal concept Law black & white Medicine shades of grey Dealing with people and human behaviour is often complex and uncertain Capacity issues often arise when treatment is refused

6 Mental Capacity Act 2005 Mental Capacity Act 2005 (England and Wales) was passed on 7 th of April 2005 and came into force in Framework to protect those who lack capacity. To enable people to take part, as much as possible in decisions that affect them. Includes five statutory principles. For people 16 years and over.

7 The 5 Key Principles 1. A presumption of capacity 2. Individuals being supported to make their own decisions 3. Unwise decisions 4. Best interests 5. Less restrictive option

8 Assessing Capacity Can the person understand the information relevant to the decision to be made? Can the person remember the information at the time the decision needs to be made? Can the person use or weigh up the information in order to make the decision? Can the person communicate their decision (by talking or any other means)?

9 The MCA Process Is there a concern about a persons capacity? (with regard to a specific decision) Undertake a Capacity Assessment Or Their own decision (even if we think it is unwise) Best Interest

10 Best Interest Checklist Assess whether the person will regain capacity Encourage participation Identify all relevant circumstances Find out the person s views (past and present wishes, feelings, values and beliefs; including any advance decisions to refuse treatment) Consult others (is IMCA required?) Avoid discrimination Avoid restricting rights Don t be motivated by a desire to bring about the person s death

11 Betty 70 Lives with husband Usually fit and well Never liked taking medication, mainly holistic therapies PMH: Osteoarthritis Meds: Paracetamol prn, senna Diagnosed hypertension Doesn t want any medication

12 When do we need to assess Mental Capacity? The starting assumption must be that the person has the capacity to make the specific decision A mental capacity assessment is needed when a person s capacity is in doubt The person s behaviour or circumstances cause doubt as to whether they have the capacity to make a decision Somebody else says they are concerned about the person s capacity or The person has previously been diagnosed with an impairment or disturbance that affects the way their mind or brain works and it has already been shown they lack capacity to make other decisions in their life.

13 Mary 72 Schizophrenia Recurrent angina 2 blocked arteries on angiogram Needs coronary angioplasty Believes doctors want to inject her with poison People trying to kill her Refusing treatment Referred to psychiatry- needs to be sectioned

14 Bill 80 COPD Increased SOB and wheeze Confusion Not using nebulisers Refusing antibiotics Referred to CMHT for mental health act assessment to treat COPD

15 Who should assess mental capacity? The person who assesses an individual s capacity to make a decision will usually be the person who is directly concerned with the individual at the time the decision needs to be made On treatment related issues it is ultimately up to the professional responsible for the person s treatment to make sure that capacity has been assessed In complex decisions and where a professional gives advice on an individual s mental capacity, the final decision about a person s capacity must be made by the person intending to make the decision or carry out the action on behalf of the person who lacks capacity not the professional, who is there to advise

16 Vera Admitted following fall at home Refusing food in hospital Not cooperating with physio CT scan- some vascular changes, background possible dementia Ward considering NG tube Referred for capacity assessment

17 Key principles A person (over 16) must be assumed to have capacity unless it is established that they lack capacity. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person s rights & freedom of action

18 Eric Dysarthria Post stroke depression- under MHA Financial exploitation from nearest relative Capacity assessment requested to displace nearest relative OT feel no capacity SALT assessment requested

19 Assessing capacity Lack of Capacity means the individual has an impairment or disturbance that affects how their brain or mind works (diagnostic test) and; The impairment or disturbance affects them in such a way that they are unable to: 1 understand information about the decision to be made ( relevant information ). 2 retain that information in their mind 3 use or weigh that information as part of the decision-making process, or 4 communicate their decision (by talking, using sign language or any other means) (functional test)

20 Relevant Information (basics) The nature of the decision The reason why the decision is needed, and The likely effects of deciding one way or another, or making no decision at all Information should be presented in a way that is appropriate to meet the individual s needs and circumstances

21 Referral Urgent assessment of mental capacity. This lady is significantly overweight. Not looking after herself or managing her diabetes. Has carers but is nasty to them, verbally abusive, they are not wanting to go anymore. Needs assessment of mental health and mental capacity

22 Assessment of capacity The MCA prohibits blanket decisionmaking on behalf of people with capacity issues and introduces a functional test of capacity that is time and decision specific

23 Recording 1. The specific decision for which capacity was assessed 2. The salient points that the individual needs to understand and comprehend and the information that was presented to the individual in relation to the decision 3. The steps taken to promote the individual s ability to decide themselves. How the information was given in the most effective way to communicate with the individual. 4. How the diagnostic test was assessed and how the assessor reached their conclusions 5. How the functional test was undertaken and how the assessor reached their conclusions

24 What is wrong with these statements? p is unable to show she has considered the option of one needs to be certain of her capacity p in unable to fully understand, retain and weigh information

25 MCA- authority Can act where: Having taken reasonable steps, reasonably believes lacks capacity and reasonably believes act is in best interests. Subject to limitations: No authority to act in conflicts with LPA/Deputy/advance decision However not prevented from providing life saving treatment reasonably necessary to prevent serious deterioration pending court ruling

26 Of what use is the Mental Health Act? The MHA allows medical treatment for mental disorder to alleviate or prevent a worsening of: - the mental disorder - or one of its manifestations Includes consequences of self harm However, may be too time consuming to complete the MHA assessment...

27 June 77 Diagnosed terminal lung Ca Discharged home with input from district nurse and carers Increasing agitated and confused Carers call GP Refusing to go in Ambulance therefore paramedics wont take Mental health act assessment arranged

28 Transporting patients under MCA S 5 (1) allows for patients to be transported to hospital for treatment as long as: (i) P lacks capacity in relation to the matter, and (ii) that it will be in P s best interests for the act to be done S 5 does not authorise a person to do an act which conflicts with a decision made by (a) a donee of a lasting power of attorney granted by the individual or (b) a deputy appointed for the individual by the court (as long as they are acting within their powers) Or conflict with an advance decision not to receive a certain treatment

29 Restraint: Use/threatens to use force to do act which patient resists Restriction of liberty whether or not patient resists No act intended to restrain unless: reasonable belief necessary to prevent harm to patient AND proportionate to patient suffering serious harm Deprivation of liberty needs express authorisation

30 The MCA should be central to the approach professionals take to patients who lack capacity in all health and care settings (including psychiatric and general hospitals). The starting point should always be the presumption of capacity.

31 Conclusions Remember key principles: Time and decision specific Presumption of capacity Allowed to be unwise Take all practicable steps to help make decision

32 To consider Would I prefer to have a living patient sue me for assault & battery for saving a life they said they did not want in a highly emotional state or have the grieving relatives of a dead patient sue me for negligence?

33 Deprivation of Liberty Safeguards (DoLS) 2007 An amendment to MCA 2005 Legal framework to protect those over 18 who lack capacity to consent to the arrangements for their treatment or care, receiving care in hospital or a care home setting

34 Deprivation of Liberty Safeguards The Safeguards were developed after a gap in the law was identified through the HL case at Bournewood Hospital (hence the Bournewood Gap ). After a long legal battle that lasted seven years, the European Court of Human Rights ruled that HL had been unlawfully deprived of his liberty. At that time, the Mental Health Act Commission suggested they could be people in similar situations (eg informal patients who could not consent to admission). The Deprivation of Liberty Safeguards were the Government response, and came into force in April 2009, under amendments to the Mental Capacity Act 2005.

35 Deprivation of Liberty Safeguards Apply in registered care homes and hospitals Authorises detention in that institution Any decision about particular care or treatment follows the normal process of assessing capacity, and making best interests decisions as required. The DoLS authorisation allows the person to be accommodated in a care home or hospital, but acts done while there (such as personal care) need to be assessed separately, and best interests decisions made.

36 Deprivations not in hospitals/care homes The Safeguards do not apply in supported living or private homes, although deprivations of liberty may well be occuring. The Law Commission is reviewing DoLS, and deprivation of liberty in settings where DoLS does not apply. They are not expected to report until 2017, with no changes to the law likely until one or two years after that. Independent assessments may need to be carried out, and an application to the Court of Protection made.

37 Dispute with family members A DoLS authorisation does not authorise restricting contact with family members (which could be a breach of Article 8 of the ECHR - right to respect of private and family life), Or manage disputes between care teams and families. For such issues, you would need to make a Court of Protection application to have the court make a decision.

38 Remember It s illegal to deprive someone of their liberty without some form of external authorisation For example: Arresting/imprisoning someone for a criminal offence Sectioning someone under the Mental Health Act DoLS authorisation from the local authority (registered homes and hospitals) Direct authorisation from the Court of Protection (supported living, Shared Lives etc)

39 P (the Cheshire West case) 38 years old Cerebral Palsy & Down s Lives in bungalow with 2 other residents 2 staff during day, 1 waking night Supported to go to day centre, pool, pub, clubs, mum s house

40 P (the Cheshire West case) continued Needs prompting and help with all activities of daily living, eg Getting around, eating, personal hygiene, continence Habit of pulling his continence pads off and putting them in his mouth Therefore required to wear a body suit

41 P (the Cheshire West case) continued Court of Protection ruled this was a deprivation of P s liberty Court of Appeal ruled that it wasn t What do you think the Supreme Court said?

42 The UK Supreme Court (19 th March 2014) A person is deprived of his liberty if he is under continuous supervision and control and is not free to leave

43 The UK Supreme Court (19 th March 2014) Is it still a deprivation of P s liberty if he is compliant with the regime? Do different standards apply to P because he is not normal? Does the reasoning behind the care plan matter in determining whether it s a deprivation of P s liberty?

44 P & Q (the MIG and MEG case) Sisters, both with learning disabilities Both attend same school, both have lots of activities, trips, holidays etc (with support) MIG (18) lives with foster mother MEG (17) lives in NHS facility

45 P & Q (the MIG and MEG case) continued Both sisters reasonably content with living arrangements Neither showed particular desire to leave their placements But MIG s foster mother, and MEG s carers, both made it clear they would restrain them if they tried to leave

46 P & Q (the MIG and MEG case) continued Court of Protection ruled that neither MIG nor MEG was being deprived of her liberty Court of Appeal agreed What do you think the Supreme Court said?

47 Supreme Court ruling - March 2014 A person is deprived of his liberty if he is: under continuous supervision and control and is not free to leave Human Rights are universal: if it would be a deprivation of my liberty, or your liberty, or anyone else s liberty, then it would also be a deprivation of P s liberty, or MIG s liberty, or MEG s liberty A gilded cage is still a cage

48 Supreme Court ruling - March 2014 The Supreme Court has ruled that if a patient, without capacity, is being deprived of their liberty a new acid test should be applied. This test defines what constitutes a deprivation at a lower level than had previously existed. It provides new guidance to identify, assess and lawfully restrict a person considered to be being deprived of their liberty, when subject to a protective care regime.

49 The Acid Test Explanation Is the patient subject to continuous supervision? A significant degree of supervision or monitoring is present Is the patient subject to continuous control? There is a clear element of control over what the patient is doing, as opposed to helping or encouraging a patient to do something Is the patient free to leave? The patient is not free to go anywhere without permission and close supervision

50 DoLS process Registered manager or representative of care home (managing authority) completes the request for standard authorisation (Form 4) and faxes it to the DoLS office for the area where the person is ordinarily resident (supervisory body). You must ensure you provide full and accurate details of family/friends to enable the BIA to contact them. Managing Authority judges whether an IMCA is needed (if there are no family or friends who are appropriate to consult), and advises the Supervisory Body if so.

51 DoLS process 2 If the person is already there and needs to be detained immediately, managing authority completes urgent authorisation (Form 1). Urgent Authorisation gives the managing authority the legal authority to deprive person of their liberty for 7 days. Copy needs to be given to person and support provided to help them to understand as much as they can.

52 DoLS assessors DoLS assessments are carried out by independent assessors, and have legal standing. Six assessments are carried out in total (Mental Health, Mental Capacity, Eligibility, Age, No refusals, and Best Interests). Mental Health Assessor (Doctor, normally section 12-approved; they can be involved in person s care) Best Interests Assessor (SW, nurse, OT or psychologist; they must not be involved in person s care) Supervisory body must give authorisation if all assessments are positive; cannot if one is negative (eg criteria not met).

53 DoLS Assessments 1. Age assessment- person is 18 or older. 2. No refusals assessment DoL authorisation would not conflict with (i) valid & applicable AD to refuse treatment, or (ii) valid decision of donee (LPA) or deputy of Ct of Protection.

54 (iii) Mental Capacity Assessment To establish whether P has mental capacity to make decision re accommodation. (iv) Mental Health Assessment To establish presence of mental disorder according to MHA

55 (v) Eligibility assessment Not eligible for deprivation of liberty authorisation if: detained under the MHA 1983, or authorisation, if given, would be inconsistent with an obligation under MHA (vi) Best Interests Assessment in best interests necessary to to prevent harm DoL - proportionate to likelihood & seriousness of that harm.

56 Standard authorisation in place Length of authorisation set by BIA for up to one year. Not valid if conditions set by BIA are not met. Does not give authorisation for actions carried out while person in hospital/care home, which must be separately assessed and best interests decisions made. Review must be requested if anything changes, such as if the care plan becomes more restrictive. Person will have a Representative (family/friend or paid rep identified by BIA), who can request reviews on the person s behalf. Appeals are made to the Court of Protection.

57 Questions?

58 Further information Mental Capacity Act 2005, Code of Practice: pdf Mental capacity and the law, Royal College of Psychiatrists leaflet for patients and carers: Capacity and consent, by E Feldman, in Seminars in Liaison Psychiatry, eds. S Guthrie, S Rao & M Temple, Royal College of Psychiatrists, Medico-legal aspects of treating patients with mental disorders and learning disabilities, by K Hill & J Haswell, in Essentials of Physical Health in Psychiatry, eds. Cormac I & D Gray, Royal College of Psychiatrists, 2012.

59 Dickenson D, Fulford KWM (2000) In Two Minds. A Casebook of Psychiatric Ethics. Oxford, Oxford University Press. Chs 1, 2, 6 and 8. Fulford KWM (Bill) (2004) Facts/Values. Ten principles of values-based medicine. In: Radden J, ed. The philosophy of psychiatry: a companion. Oxford: Oxford University Press, pp Hughes JC, Baldwin C (2006) Ethical Issues in Dementia Care: Making Difficult Decisions. London: Jessica Kingsley. Jacob R, Gunn M, Holland A (2013) Mental Capacity Legislation: Principles and Practice. London: RCPsych Publications. Hughes, J.C. (in press). Chapter 55. Ethics and old age psychiatry. In The Oxford Textbook of Old Age Psychiatry, (eds. T. Dening and A. Thomas). Oxford: Oxford University Press. Hughes, J.C. and Heginbotham, C. (in press). Chapter 56. Mental capacity and decisionmaking. In The Oxford Textbook of Old Age Psychiatry, (eds. T. Dening and A. Thomas). Oxford: Oxford University Press. Fulford KWM (1989) Moral Theory and Medical Practice. Cambridge, Cambridge University Press. Fulford KWM, Thornton T, Graham G (2006) Oxford Textbook of Philosophy and Psychiatry. Oxford, Oxford University Press.

60 General Medical Council (UK) (2008) Consent: Patients and Doctors Working Together. London, GMC. General Medical Council (UK) (2009) Confidentiality. London, GMC. General Medical Council (UK) (2010) Treatment and care towards the end of life: good practice in decision making. London, GMC. Hughes JC (2001) Views of the person with dementia. Journal of Medical Ethics, 27, Hughes JC, Louw SJ, Sabat SR (eds.) (2006) Dementia: Mind, Meaning, and the Person. Oxford: Oxford University Press. (Especially chapters by Bavidge, Aquilina/Hughes, Downs et al, Cayton, and Sabat.) Hughes JC (2011) Thinking Through Dementia. Oxford, Oxford University Press Hughes JC (2013). 'Y' feel me?' How do we understand the person with dementia? Dementia, 12(3), Published on-line on 19th March 2013; doi: / Hughes JC (2013). Philosophical issues in dementia. Current Opinion in Psychiatry, 26, doi: /YCO.0b013e32835f675e Hughes, J.C. (2013) Dementia is dead, long live ageing: Philosophical sources for understanding working with dementia. In: Oxford Handbook of Philosophy and Psychiatry (eds. K. W. M. Fulford, M. Davies, G. Graham, J. Sadler, G. Stanghellini, and T. Thornton); pp Oxford: Oxford University Press. Radden J (ed.) (2004). The Philosophy of Psychiatry: A Companion. Oxford: Oxford University Press. Numerous chapters in this book are relevant and compelling. Sabat SR, Harre R (1994) The Alzheimer s disease sufferer as a semiotic subject. Philosophy, Psychiatry, & Psychology 1, Sadler JZ (2005). Values and Psychiatric Diagnosis. Oxford, Oxford University Press. Especially Chapter 11. Widdershoven, GAM, Widdershoven-Heerding I (2003) Understanding dementia: a hermeneutic perspective. In: Nature and Narrative: An Introduction to the New Philosophy of Psychiatry (eds. B Fulford, K Morris, J Sadler and G Stanghellini). Oxford, Oxford University Press; pp