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You are the consultant on call. It’s giving their time pro bono. There was generous dis-
cussion time, and feedback was extraordinary. Many
midnight and the phone rings spontaneously made contact, calling the day, ‘the best
An 89-year-old woman has been admitted via the education seminar they’d ever attended’.
Emergency Department with severe breathlessness and In an effort to distil some of what we all learned,
is now on a general ward. She is cachectic, with exten- representative members of the speakers, organisers
sive abdominal surgical scars, and is severely demented and delegates have put together a series of short
(with a 4x/day carer package). A medical note relating articles.
to ‘referral to a palliative care team’ is found on the They cover Informed Consent (and the significance
electronic system, but there are no details. Her daugh- of the ‘Montgomery Ruling’), Capacity, assessment of
ter says that she has no further information to offer, but ‘Best Interests’, the role of (and access to) the Court of
that she has power of attorney. The daughter has earlier Protection, and even how (and when) to access a
refused to accept that a DNAR order be put in place. Judge at 2 a.m. Exemplar fictitious (but ‘representa-
An hour ago, the patient vomited and aspirated and tive of real life’) cases, such as those above, will be
suffered a cardiac arrest. Five cycles of CPR later, offered.
the daughter is insistent that her mother goes to ICU. The articles are presented in two parts which will
Your registrar wants to know what to do. be published in successive issues of this Journal. We
It hasn’t been a good day. Earlier, you were greeted hope that you find them easy to read, and that they
by a senior nurse. She anxiously shows you a Facebook offer some practical advice and comfort when navi-
page, frequently updated by family members, which logs gating the legal minefield into which we increasingly
the clinical timeline and course of a relative who is feel that we have been parachuted without warning.
unconscious on ICU. The page has attracted comments
from many well-wishers. Photographs have been Richard Innes and Hugh Montgomery
uploaded which identify staff, and some have negative
comments attached. Adjacent patients are also visible in
photographs. The relatives of one have complained. So
has one of the defamed staff. Your ‘legal department’
has been outsourced, and no-one is familiar with issues
relating to social media.
For those working in critical care (at every level of
seniority and across all disciplines) such problems have
become ever more prevalent. Further, the law always
seems to be changing and rarely seems to offer ‘black
1
and white’ clarity on what has to be done. This leads to Intensive Care Unit, Musgrove Park Hospital, Taunton, UK
2
Intensive Care Unit, Whittington Hosital, and Dept Medicine,
feelings of insecurity and uncertainty: dealing with
University College London, London, UK
such issues can be far more frightening than is the man- 3
South West London and St George’s Mental Health Trust, London, UK
agement of multi-organ failure. 4
Nuffield Division of Anaaesthetics, University of Oxford, John Radcliffe
In the spring of 2017, the ICS organised a one day Hospital, Oxford, UK
5
seminar to explore just these sort of issues. We Enable Law LLP, Bristol, UK
6
Bevan Brittan LLP, Bristol, UK
brought together experts from Psychiatry, Social
Care and the Legal world, those who mainly practiced Corresponding author:
in ‘defense’, but also those more regularly involved in Richard Innes, Musgrove Park Hospital, Taunton, TA1 5DA, UK.
litigation. All who talked were senior and experienced, Email: richard.innes@tst.nhs.uk
Innes et al. 67
Introduction to the first set of articles even at night) and how best they are documented.
When faced with a complex ethical decision regarding Dr Matthew Rowland has created a standard tem-
whether critical care is to be provided (and with what plate for such documentation, useful to clarify your
limitations), the first consideration is whether the thoughts, to present to a judge should this be needed
patient has capacity. Dr Jim Bolton – a Consultant in the event of disagreement over the right course of
Psychiatrist – provides a practical guide to doing action, and useful to present should your decision ever
this with some pertinent examples. be challenged.
In all situations, you are legally obliged to act in the
patient’s best interests. Simon Lindsay – a Defence Richard Innes and Hugh Montgomery
Lawyer – explains how these are determined
(including when a court’s opinion should be sought,
68 Journal of the Intensive Care Society 20(1)
Jim Bolton
5. And in a way that is least restrictive of the person’s Communicate a decision. Communication does not have
rights and freedom of action. to be verbal or written. In certain circumstances, it
could be by using sign language or simple muscle
The MCA describes a two-stage functional test of movements, such as blinking.1
capacity, whereby an adult can only be considered
unable to make a particular decision if: Considerations when assessing capacity. The following
points regarding capacity may be relevant in clinical
1. They have an impairment of, or disturbance in, the situations:
functioning of the mind or brain.
2. This disturbance or impairment is sufficient to . Capacity is specific to particular decision at a par-
make them incapable of making a specific decision ticular time. It is not an ability to make decisions in
at the time it is required to be made. general.
. Some patients may be able to make simple deci-
A person is unable to make a decision if they sions but lack capacity to make more complex
cannot do one or more of the following: decisions.
. An individual’s capacity to make a decision may
. Understand the information relevant to the fluctuate with changes in their condition, e.g.
decision; delirium.
. Retain the information long enough to be able . The assessor should make their decision on the bal-
make the decision; ance of probabilities – is it more likely or not that
. Weigh up the information as part of the process of the person lacks capacity?
making the decision;
. Communicate the decision.
patient continues to decline, it may be appropriate to primarily regulates the treatment of mental but not
allow the patient time to reconsider and, if their deci- unrelated physical health problems.
sion does not change, to discuss alternative treatments. The MHA can be used to treat physical disorders
that directly cause mental illness, such as thyrotoxicosis
causing psychosis, or HIV causing encephalitis. The
When might a psychiatric opinion be required?
MHA also permits medical treatment for the manifest-
In a case such as that described in Case Study 1, it is ations of a mental disorder, such as parenteral feeding
unlikely that a psychiatric assessment would be in anorexia nervosa, and treatment for the physical
required. However, it is appropriate in a complex consequences of self-harm. In the case described in
case where there is uncertainty regarding the patient’s Case Study 2, the fracture was not a manifestation or
capacity to consent to treatment, particularly when direct consequence of schizophrenia, hence surgery
mental illness may be compromising the patient’s deci- could not be undertaken under the MHA.
sion making. Such a case is described in Case Study 2. Even if the MHA could be used to deliver treat-
ment for a patient who lacks the capacity to consent
to such treatment, the process of detention under the
Case Study 2
MHA can be time consuming. In an emergency situ-
A 47-year-old woman was assessed in the Emergency ation, it may be appropriate to proceed with treat-
Department after sustaining a fractured neck of ment under the MCA whilst a MHA assessment
femur. It was judged that she required urgent surgery takes place. This action might be appropriate for the
to prevent avascular necrosis of the hip. However, she case described in Case Study 3, where a delay in the
maintained that the hospital staff were imposters and treatment for a paracetamol overdose carries a signifi-
that she was not in a genuine hospital. She therefore cant risk of long-term harm.
refused surgery.
The patient was jointly assessed by an orthopaedic
surgeon and a liaison psychiatrist. She reported
The incapacitous patient
having a history of schizophrenia but not having If a patient is judged to lack the capacity to consent to
recently taken antipsychotic medication. The patient or refuse treatment, it should be determined whether
was able to understand and retain information they have made provision for future incapacity, such
regarding surgery. However, it was judged that she as a Lasting Power of Attorney or an Advance
lacked the capacity to consent to or refuse surgery, Decision to refuse treatment.4
because her decision was based upon a misperception
of reality due to her mental illness which adversely Lasting Power of Attorney. A Lasting Power of Attorney
affected her ability to weigh up the necessary (LPA) allows an adult with capacity (the ‘donor’) to
information. appoint someone to make decisions on their behalf
(the ‘attorney’) should they lose capacity. The LPA
indicates whether decisions can be made on behalf of
Capacity and mental disorder
the individual regarding financial matters, or personal
Capacity may be affected by both chronic mental dis- welfare (including healthcare decisions), or both. In
orders and transient abnormalities in mental state. order to be valid, a LPA must be registered with the
Memory impairment in the context of dementia may Public Guardian and on the prescribed form.
prevent an individual being able to retain the neces- An attorney must act in accordance with the
sary information. Case Study 2 describes a case where MCA’s principles and any decision made must be in
persecutory delusions in the context of schizophrenia the donor’s best interests. An attorney has no power
prevented an individual being able to adequately to consent to or refuse life-sustaining treatment unless
weigh up the information given. the LPA document expressly authorises this.
Transient mental states such as intoxication with
drugs or alcohol, the effects of prescribed medication, Advance Decision. The MCA enables an adult with cap-
anxiety, pain and fatigue may also impinge upon an acity to make an Advance Decision to refuse a speci-
individual’s decision making ability. However, mental fied treatment under specific circumstances should
disorder, whether acute or chronic, does not automat- they lose capacity in the future. An Advance
ically make someone incapable of making healthcare Decision should be followed unless it is uncertain
decisions. whether the person had capacity when the decision
was made, or if there is reason to believe that the
person has since changed their mind. An Advance
The Mental Health Act
Decision does not need to be written down unless it
In the majority of cases, patients with comorbid applies to life-sustaining treatment.
mental disorders, including those detained under the
MHA, have the same rights as others regarding deci- Informal statements. Family and carers of an individual
sions about their physical health care. The MHA may be aware that they have previously made
Innes et al. 71
informal statements about their future wishes for transient, that would affect an individual’s ability to
healthcare. Such statements are not legally binding weigh up the necessary information. Self-harm gener-
but should be considered in an assessment of the ally occurs in a state of heightened emotional arousal,
patient’s best interests. which dissipates as the patient’s mood improves.
Respecting the patient’s expressed wishes may be
Best interests. Two of the statutory principles under denying someone who lacks capacity essential
the MCA are that anything done or decision made treatment.
on behalf of a patient who lacks capacity must be If the patient is judged to lack capacity and resists
done in their best interests and in the least restrictive treatment or attempts to leave, it should be considered
way. An assessment of what constitutes a patient’s whether it is in their best interests for them to be
best interests is discussed in an accompanying article. restrained. Bearing in mind the final underlying prin-
ciples of the MCA, the degree of force used should be
no more than necessary to control the patient’s behav-
Assessing an uncooperative patient
iour and allow the proposed treatment to be carried
Instances occasionally arise when a patient refuses out.5
treatment and they are uncooperative with a detailed
assessment of their capacity to make such a decision.
An example is given in Case Study 3.
Record keeping
Long-term or significant decisions about capacity
should be clearly documented. The record should
Case Study 3
describe what the decision was, and why and how it
A 23-year-old man is brought to the Emergency was made. It is advisable to explicitly describe the
Department by friends who leave after telling staff assessment made using the two-stage test of capacity.
that the patient has taken approximately 50 tablets
of paracetamol. The patient declines to participate
with detailed questioning and does not agree to
Conclusions
either blood investigations or the administration of As in the cases discussed, assessing a patient’s cap-
intravenous N-acetylcysteine. The patient states that acity to consent to treatment may be problematic
they do not wish to undergo further investigation and due to the complexities of human thinking and behav-
treatment and want to leave the Department. iour. However, the underlying legal principles provide
a structure that, if borne in mind, often makes assess-
In a case such as that described, the assessor may ment more straightforward.
be uncertain whether to presume that the patient has A patient’s capacity to consent to treatment is
capacity, recognising that one of the statutory prin- often called into question if they refuse the suggested
ciples of the MCA is that adults are assumed to have care. If, according to the criteria described in the
capacity unless shown otherwise. If capacity is pre- MCA, they are judged to have capacity to make the
sumed, the patient’s wishes should be respected. decision, this should be respected. If they are judged
Alternatively, the assessor may consider that there to lack capacity, it should be considered whether they
is sufficient evidence to indicate that the patient lacks have previously made legal provision for a future loss
the capacity to refuse treatment. If this is the case, of capacity. If not, decisions about care should be
decisions about the patient’s care should be made in made in their best interests.
their best interests.
Capacity may be affected by both chronic mental References
disorders and transient changes in mental state. In a 1. Department of Health. Reference guide to consent for
situation such as that described, it should be con- examination or treatment. 2nd ed. London: Department
sidered whether there is any evidence for a mental of Health, 2009.
disorder likely to affect the patient’s capacity. The 2. Department for Constitutional Affairs. Mental Capacity
urgency of the proposed treatment and the implica- Act 2005. Code of Practice. London: The Stationery
tions of the patient receiving treatment should also be Office, 2007.
borne in mind. The more serious the decision, the 3. GMC. Consent: patients and doctors making decisions
together. London: GMC, 2008.
greater the degree of capacity required.
4. Department of Health. Mental Capacity Act 2005. Acute
The author’s clinical experience of cases such as
hospitals training set. London: Department of Health,
that described in Case Study 3 is that the patients 2007.
are usually judged to lack capacity to refuse treat- 5. Royal College of Emergency Medicine. Consent, capacity
ment, bearing in mind that self-harm is strongly indi- and restraint of adults in Emergency Departments.
cative of an altered mental state, either chronic or London: Royal College of Emergency Medicine, 2013.
72 Journal of the Intensive Care Society 20(1)
Simon Lindsay
Simon Lindsay provides advice and support to health- The daughter cannot direct care. The Consultant’s
care organisations, in particular NHS clients, in role here is to be a disinterested assessor, required by
inquests, court of protection matters, challenges to law to weigh up the available information, determine
treatment decisions, health and safety and general the patient’s best interests and then act according to
clinical practice. He specialises in general medical this assessment. Determining best interests requires
law and is a nominated partner for NHS consideration of at least:
Resolution. He has a special interest in mental
health and capacity law. 1. The suffering and detriments involved in clinical
treatment.
The Mental Capacity Act (2005) makes clear that a 2. The possible gains to quality and duration of life
medical practitioner must provided by medical intervention. In considering
quality of life were any treatment to be successful,
1. Take reasonable steps to establish whether a the question is not whether the resulting quality of
patient lacks capacity before giving or withholding life is one most would not seek, but whether it is a
treatment, and then, if the patient does lack satisfactory quality of life for this patient if he were
capacity. able to choose.
2. Decide to give or withhold treatment based on 3. What the patient might have wanted. This requires
whether he or she, on reasonable grounds, considers knowledge of their past expressed views and cul-
such actions to be in the patient’s best interests. tural and religious beliefs. The opinions of those
who know the patient well (including the daughter)
If the plan of treatment (or its withholding) is later might help inform in this regard, but care must be
contested, the prior conscientious application of the taken to try to assess the reliability of opinions
best interests test will offer some defence. offered.
But what if a relative demands treatment when the 4. He must consider the patient’s welfare in the widest
practitioner believes that this is not in the patient’s sense, not just medical but social and psychological
best interests? The views of those who know the
patient well must be considered in determining best Wide discussion is required, and second medical
interests but are not the sole determinant of the con- opinions can help and should certainly be sought
clusion reached. The clinician is not legally obliged to where there is dissent between clinicians and next of
give treatment (s)he does not believe to be in his kin.
patient’s best interests but must offer care which is. What is in a patient’s best interests is rarely abso-
Take, for example, the following scenario. It is late lute and families or carers can often be more flexible
on Saturday night; an 85-year-old man was admitted to than first appeared. Some family members will be
hospital earlier in the day with signs of chest infection. intransigent, some clinicians stubborn, but it is usu-
He has vascular dementia and had been found to have ally worth exhausting as many forms of dispute reso-
a mass in his chest six months before. He has been lution as possible before putting a case before a court,
admitted three times with infection in the previous 12 even those where the ultimate decision has to be made
months. He is now starting to deteriorate in hospital. by the court rather than the parties. If advocacy (or
His daughter (his main carer) insists that he be given all legal mediation) services are available for the family,
possible care, including cardiopulmonary resuscitation, this may help them articulate their concerns and
ICU admission, and full organ support if required. The better understand the views of clinicians.
Consultant doubts that this would be of any value but
is aware that last time the patient was admitted (to a Early use of a mediator may be useful
different hospital), the daughter made several formal
complaints including one to the GMC about her
to avoid the polarisation of opinions
father’s care. What should the consultant do? However, in an emergency, where there is doubt or dis-
pute about a patient’s best interests, it is usually best to
Innes et al. 73