The Mental Capacity Act 2005 and the use of Advance Decisions
by David Thornicroft
The Mental Capacity Act 2005 and the use of Advance Decisions
Many readers will be familiar with the Mental Capacity Act 2005, and you may well have attended training on it. You may well also have some understanding of the concept of Advance Decisions. But the whole issue of when you should treat a patient, and when you should withhold treatment, is still a tricky ethical and legal dilemma. This article attempts to provide some clarity.
The Mental Capacity Act 2005, which applies in England and Wales only, starts from the premise that individuals over the age of 16 years are able to make decisions about their own lives. These may not be very good decisions, and they may well be decisions with which parents and/or professionals may disagree, but ultimately there is a presumption that the individual can make them for him/herself.
The Act brought in many new concepts, one of which is the Advance Decision. An individual who has capacity (in other words who can make decisions about his/her own life) is now able to make an Advance Decision to reject any form of medical treatment.
Immediately there is a deviation from the main body of the Act here, because Advance Decisions can only be made by individuals who are over the age of 18 (not 16, as applies to most of the rest of Act).
An Advance Decision (sometimes called, wrongly, an Advance Directive) is legally binding, if properly made in the first place. It means that the individual has made his/her wishes clear, and that these wishes must be respected today and in the future.
So what are health and social care professionals to do to ensure that we comply with the law?
Let's take two scenarios to try to clarify. Scenario 1 concerns Katya, a 30-something female who is being driven along a main road by her husband Ian. They are involved in a head-on collision with an articulated lorry. The ambulance arrives to find Katya unconscious with severe head injuries. Ian, who is injured but conscious, tells the paramedics that Katya has always said she does not want to be resuscitated.
Scenario 2 concerns Alf, a 90-something resident of a nursing home for people with dmeentia. He has just suffered a suspected heart attack, and the ambulance is called. His daughter Gemma is with him at the nursing home and, just like Ian, she tells the paramedics that her father has always said he does not want to be resuscitated.
The question is: do you resuscitate both Katya and Alf, only one of them (which one?), or neither of them? And, most importantly, why?
Before the introduction of the Mental Capacity Act these were difficult questions. If you asked 100 paramedics you would probably get 101 different answers. However the Act does give clarity, if it is properly interpreted.
The first issue is whether or not Katya or Alf have capacity at the moment to make the decision for themselves. If they do, then the decision is up to them. In these cases, however, assuming that they are both unconscious and both incapable of communicating with you then they do indeed lack capacity (because one of the requirements of capacity is that the individual must be able to communicate his/her decision to you, in some form or another). Therefore the decision to resuscitate must be made by you.
The second issue is whether or not there is indeed a valid Advance Decision in place, specifically relating to resuscitation. Both Katya and Alf have relatives nearby telling you so, but this is not sufficient. It is possible to make a verbal Advance Decision (for example "I never want to be given electro-convulsive therapy", or "I never want to be given an injection"), but when it comes to life-sustaining treatment the Advance Decision must be in writing. It must be made at a time when the individual has capacity about the treatment that s/he is refusing; it must state specifically what treatment is being refused and in what circumstances; it must be signed and dated by the individual and it must be countersigned and dated by someone else to confirm that, in their opinion, the individual does have capacity about the treatment that s/he is refusing.
This is the point at which the scenarios may well diverge. Is it reasonable for the paramedic treating Katya, in all the chaos of a road accident, to search for the Advance Decision, then read it, check that it contains all the necessary details etc? No! The paramedic act in whats/he believes to be in Katya's best interests, which almost certainly means attempting resuscitation. The paramedic must also be prepared to justify his/her decision later. The paramedic will not be prosecuted as long as s/he has acted "reasonably".
However in Alf's nursing home it's a very different situation. The nursing home staff should have discussed such scenarios in advance with each resident and, where appropriate, with the family. It is entirely predictable that an elderly resident such as Alf may suffer a heart attack. The home should keep detailed records on the wishes of each resident. Those records should be easily accessible. So at the point of making the 999 call a good nursing home will already have told the paramedics that there is a valid Advance Decision in place stating clearly that Alf does not want to be resuscitated in the event of a heart attack. The paramedics, when attending the scene, should of course ask to see the Advance Decision, to satisfy themselves that it does exist. If so, then the decision is made. No resuscitation. And of course if the nursing home cannot produce the Advance Decision then the it's up to the paramedic to decide what is in Alf's best interests, which again almost certainly means attempting resuscitation.
Remember that the Mental Capacity Act is there to protect the individuals who lack capacity AND the people who care for them. Chapter 6 of the Mental Capacity Act Code of Practice is well worth reading, because it explains how carers, healthcare and social care staff can carry out their normal duties without fear of being prosecuted. The two crucial issues are set out in paragraph 6.22: (The carer) "must reasonably believe that the person lacks capacity to make that particular decision at the time it needs to be made, and the action is in the person's best interests."
Of course the wishes of the patient may conflict with our own instincts. We may feel it is morally wrong not to try to resuscitate Katya, or Alf, irrespective of their wishes. But the Act again makes clear that our own beliefs or morals are secondary in importance to the beliefs and morals of the individual. And that, surely, is how it should be.
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