Older people have the same rights as everyone else to confidentiality. If older people are dependent on others, the family will need to be informed, but do discuss this with the patient first.

This came into force in 2007 and is a statutory framework:

• To empower and protect vulnerable adults who are not able to make their own decisions ranging from the daily, e.g. what to eat, to the occasional but serious, e.g. consent to surgery.
  
• To enable people to plan for a time when they may lack capacity.

Who Needs to Know About the MCA?

If you have a patient who lacks capacity, this may affect how they are managed in a number of ways:

The MCA will affect how you consult family and friends and the patient may need an advocate.

Serious Medical Treatment

This is defined as providing, withdrawing or withholding treatment where:

• There is a fine balance between benefits/burdens and risks, e.g. deciding whether to amputate a gangrenous foot in a patient who has just had a stroke.
  
• Choice of treatments is finely balanced, e.g. type of chemotherapy in advanced breast cancer.
  
• What is proposed would have serious consequences for the patient.

Five Principles Underpinned by the MCA

Assessment of Capacity

This is only considered if the patient has impairment of brain function. Capacity is decision and time-specific, i.e. a person may be able to decide what to eat and to make a will, but may not be able to decide about returning home. However, the situation may be different tomorrow.

In order to have capacity, the person must be able to:

Advance Decisions

The MCA puts the status of advance decisions on a statutory footing. A person:

The advance decision must have been made when the person had capacity to be valid. It only applies to the circumstance described, e.g. ‘I do not want resuscitation if I cannot speak after a stroke’ will not influence treatment after a heart attack. To refuse life-sustaining treatment, the advance decision must be in writing, signed and witnessed and specify ‘even if life is at risk’. If the person is detained under the Mental Health Act (MHA), this takes precedence over the MCA.

This is the method by which a person with capacity can choose who will look after his or her affairs in the future if capacity is lost.

A patient who has a moderate estate but does not have capacity to take out an LPA should be referred to the Court of Protection. Application may be made by a relative, the solicitor or the doctor. A medical certificate is required and the court will usually appoint an interested relative or other suitable person as a deputy, to act as the patient’s agent, but not to dispose of assets. Where the assets only consist of social security benefits, the Department of Social Security can nominate an appointee to deploy them for the person’s benefit.

Court of Protection (2007)

This is a specialist court that:

The court can issue a declaration that a proposed treatment would be lawful. In considering the patient’s best interests, the court will be guided by the Bolam test, which simply asks whether the treatment would be supported by a responsible body of medical opinion. An approach to the court is best made through the hospital’s legal services manager or, in an emergency, through the duty manager. One source of uncertainty is whether a refusal to be treated reflects a depressive illness where it would be necessary to seek a psychiatric opinion. People are allowed to make unusual decisions: the judgement in the highly publicized case of ‘Miss B’ in the UK (2002) gives a strong steer to the profession that, providing the patient is competent, the stated wishes should be respected however apparently irrational. The public guardian and his office run the affairs of the court. It is now a criminal offence to mistreat a person lacking capacity.

The Duties of an IMCA

Consent must be sought for all medical interventions, although this will often be a very informal process and sometimes only implied. Without it, the health care professional has committed the crime of battery. Written forms are highly desirable for surgical procedures and research involving drug trials or other interventions, although oral consent is equally valid in law. Consent must be informed, which means that the doctor must provide the necessary information, and ambiguities can arise concerning just how much information has been imparted and whether it was couched in appropriate and readily assimilable terms. Consent must also be voluntary, i.e. no undue pressure must have been exerted on the patient.

Testamentary capacity means mental competence in the single connection of drawing up (or revoking) a will. In order to be capable of this act, a person needs to:

• Understand the nature of such an act.
  
• Have a reasonable grasp of the extent of their assets, so an assessing doctor has to have at least a vague idea of the patient’s circumstances.
  
• Be aware which persons have some claim on their property.
  
• Be free of delusions which might distort their judgement.

In practice, this implies the parenteral sedation of the acutely confused, disturbed patient whose restlessness or aggressive behaviour is a danger to themself or, less commonly, to others. It is permissible under common law to hold the patient down to administer an injection as a last resort and for their own protection, if other physicians would regard it as appropriate and if reasonable people would want the treatment themselves. The procedure is deeply distressing to one and all and can usually be avoided (see also Chapter 4).

Sedation is a form of chemical restraint and has been termed a ‘pharmacological straitjacket’ but may be temporarily necessary in the acutely confused, ambulant patient until investigations and treatment rectify the condition. Patients may fall while trying to get out of bed, so fitting bedrails only ensures that the fall occurs from a greater height. Nursing them on a very low bed or even a mattress on the floor may be preferable but this can be seen as a form of physical restraint. Frail subjects may receive some protection from bedrails, which remind them to ask for help to go to the toilet and prevent them from slithering from the side of the bed to the floor. Tilting or ‘bucket’ chairs should be avoided where possible, but poor staffing levels and a rising tide of complaints and litigation has made the prevention of falls by any means a higher priority for management than respect for autonomy.

Environmental Restraints

Environmental restraints include doors that, although not locked, are difficult to open, or a barricaded kitchen in the home, both occasionally necessary for the individual’s protection. The gas supply to the cooker may be disconnected and hot meals delivered instead. A controversial restraint is the electronic tag, which triggers an alarm if the patient leaves the hospital ward. This may infringe civil liberties but less so, perhaps, than having your life support systems switched off as you lie in ITU by a disorientated patient who wanders in and wants to plug a toaster into an inconveniently occupied socket! Whatever type of restraint is used, the method, the reasons and the arrangements for review should be documented.

The Deprivation of Liberty Safeguards (DOLS) were introduced into the MCA 2005 by the MHA 2007 and have been operative since April 2009. The aim is to provide legal protection for vulnerable adults (mainly with learning disabilities and dementia), who are not detained under the MHA but are restricted in their freedom due to their inability to consent to care or accept treatment. The safeguards apply to patients in hospitals and care homes and are designed to ensure compliance with the European Convention of Human Rights which first highlighted the human rights infringement in the Bournewood case (HL v UK). The care of such individuals should be the least restrictive possible and contact with family or friends should be encouraged. If hospitals and care homes are depriving people of their liberty, this needs to be minimized and registered.

Cardiopulmonary Resuscitation (CPR)

CPR is the issue that ferments the most emotion. This is because of massive publicity in the media, which has led to a widespread misconception by the public that the ‘do not attempt cardiopulmonary resuscitation’ (DNACPR) decision by hospital staff is the major determinant of life or death during the admission. There is a great deal of pressure on staff to introduce this topic at their first encounter with the patient. Yes, it is important, but it only applies to cardiorespiratory arrest, and except in the setting of ACS in coronary care, CPR has a very low success rate. In studies, which are always of patients selected for CPR, about 20% of patients survive resuscitation, but only about 14% will leave hospital, and only 4% of those will be over the age of 75. It is a procedure about which patients, relatives and hospital staff harbour unrealistic expectations.

A DNACPR decision should be taken by the most senior doctor available, ideally after discussion with the patient, the team and, with the permission of the competent patient, the relatives, regularly reviewed, and recorded in the notes, together with the reason. A DNACPR order is appropriate: