The Mental Capacity Act in practice

Before the introduction of the Mental Capacity Act,¹ no clear framework existed for assessing the decision-making abilities of vulnerable patients.

Judgments were made on a rather ad-hoc basis, and no doubt many patients suffered as a consequence. In April 2007, some elements of the Act were introduced, including guidance for assessing capacity and best interests, and use of independent mental capacity advocates. In this article, we highlight how to use the Act clinically when addressing issues of capacity.

Mental capacity in practice

A 66-year-old male patient was admitted to hospital in April 2007, with pyrexia, malaise, weight loss, and low mood. He had a history of depression and was under the care of a psychiatrist. On examination he was noted to have clubbing of the fingers, with reduced breath sounds at the right base. Inflammatory markers were raised and chest X-ray confirmed right basal consolidation.

He was diagnosed with pneumonia and given intravenous antibiotics. Cognitive function was not documented on admission. He did not respond to treatment, and therefore underwent a CT of the thorax, which showed a pleural fluid collection (11 x 8 x 8 cm), suggestive of an empyema.

A respiratory physician recommended ultrasound-guided drainage. The consultant also noted that the patient was disoriented in time: he thought the Prime Minister was Harold Wilson. The patient refused the procedure, and since his cooperation was needed to perform it successfully, it was not done. His capacity to make this decision was not assessed.

He then expressed a wish to die, so a psychiatric opinion was requested. The referral did not mention capacity, and the psychiatrist commented only on his low mood. In May 2007, he was transferred to a shared-care ward (elderly medicine and psychiatry), where he was reviewed—specifically, regarding his capacity to refuse the procedure. On the basis of impaired cognitive function and low mood, he was deemed to lack capacity for this decision (he was unable to weigh the information as part of the decision-making process).

People lack capacity if they are unable to:

• Understand the information relevant to the decision;
• Retain that information;
• Use or weigh that information as part of the decision-making process;
• Communicate their decision.

At this point, we proceeded to consider the best interests checklist, according to the Act. We knew that his current wish was not to have a chest drain, even if this led to his early death. He lacked mental capacity, and we did not believe that he would regain capacity in the near future. We were unable to ascertain his past wishes or values because he had not written an advance decision and did not have any family or friends. His only contacts were paid carers: this made him technically unbefriended.

Best interests checklist

• Consider the likelihood of the person regaining capacity;
• Encourage participation in the decision-making process;
• Consider the person’s previous wishes, values, and beliefs;
• Seek the opinions of: unpaid carer, relative, friend, attorney, or deputy.

By this stage, so much time had elapsed that a chest drain would no longer be effective treatment for his empyema. The specialist respiratory advice changed, stating that he required a thoracotomy and open decortication under the cardiothoracic surgeons. Clearly, this constitutes significant medical treatment as detailed in the Mental Capacity Act. The patient, therefore, required referral to an independent mental capacity advocate.

When to involve an advocate

Contacting an advocate is advisable if the patient is unbefriended (or abuse is a concern) and needs:

• Serious medical treatment;
• Accommodation in a hospital for more than 28 days;
• Placement in a care home for more than 8 weeks;
• A change in accommodation to another hospital or care home.

Decisions relating to detention or compulsory treatment under the Mental Health Act are excluded.

The role of advocates

• Supporting the person in making decisions;
• Ascertaining the person’s past and present wishes (if possible);
• Obtaining information including having access to medical and social care notes;
• Requesting a second opinion if necessary;
• Challenging medical or social-care decisions if necessary.

In view of the perceived risk if left untreated, (ie, death due to sepsis or development of a chronically discharging pleurocutaneous fistula), the independent advocate concurred with the team’s opinion that it was in the patient’s best interests to have surgery. However, when the ambulance crew arrived to transfer him to a specialist unit, he put up considerable resistance.

We concluded that for him to complete his treatment he would need heavy sedation to transfer him, an operation against his will, and then further sedation to prevent him complicating his recovery. This constituted deprivation of his liberty, which is not sanctioned under the Mental Capacity Act (and breaches Article 5(1) of the European Convention on Human Rights).² The case was passed on to the legal department, since we felt that we required a court decision as to whether or not we could proceed with treatment.

However, before the case could come to court, a repeat CT of the thorax showed significant improvement in the fluid collection. The patient had remained clinically and biochemically well, even off antibiotics. It was then decided that surgery was no longer in the patient’s best interests. He has continued to improve and is now living in a private care home for several months, with community psychiatric nursing follow-up.

This patient had a convoluted and at times traumatic journey through the health-care system. The initial failure to consider his mental capacity perhaps reflects the fact that medical staff (including psychiatrists) are still not wholly conversant with this issue. The Mental Capacity Act gives useful guidance on how to proceed in such cases and we encourage all doctors to be alert to the issue of mental capacity in their day-to-day practice.

The authors declare no conflict of interest.

References

1. Office of Public Sector Information. Mental Capacity Act 2005 (c.9). http://www.opsi.gov.uk/ACTS/acts2005/ukpga_ 20050009_en_1 (accessed 22 July 2008)
2. European Convention on Human Rights, 5.1. http://www.hri. org/docs/ECHR50.html#C.Art5 (accessed 22 July 2008)

Authors

Dr Rachel McLaren, Specialist Registrar in Old Age Psychiatry, Shared-care ward, York Hospital, York, UK. Email: [email protected]

Dr Paul Willcoxson, Specialist Registrar in Elderly Medicine, Shared-care ward, York Hospital, York, UK.