Rationale The patient is more than the sum of their problems and already has a range of ski lls for coping with adversity. The best way for the patient to achieve their goals is for t hem to discover and harness those capabilities and resources which are already helpful and to make even better use of them. The solution-focused therapist facilitates this process. How illness is viewed Solution focused therapy avoids viewing problems or symptoms as goals for therapy. Rather, it prompts the patient to visualize a future without the problem and to plan the stages necessary to achieve this. In-depth consideration of the development of current dif \201 culties is avoided, as this may imply that the problems are inevitable an d unchangeable. Techniques (Box 20.5) \200 Problem-free talk helps the therapist to understand the \200\230patient behind the problem s \200\231 and may elicit areas of strength or competence. If the patient discusses their p roblems, the therapist listens actively, re \202 ects on the coping strategies described b y the patient, and highlights the possibility of change. Preferred future from the current complaints. Exception \201 nding future seemed more attainable. Rather than seeing them a s \200\230the exception which proves the rule \200\231, these situations are examined to d etermine which skills the patient used to help bring about a favorable outcome. Scales Rati ng their preferred future as 10, the patient rates their current position numerically betwe en 0 and 10. They are invited to discuss the difference between 0 and where they are now, t he resources responsible for this, and to identify the steps or signs of progress between p oints on the scale. Discussion of other areas of the patient \200\231s life \200\224this The patient identi \201 es future goals, shifting focus away The patient identi \201 es situations when the preferred Phases of treatment First session Establishes the patient \200\231s goals or best hopes fro m therapy, recognizes what the patient already does or has done which helps them to cope or moves them towards this preferred future, and identi \201 es what the next signs of progr ess may be. Subsequent sessions Explore what the patient has done since the previous session which has been helpful, place this in the context of the patient \200\231s goals for therapy, and ide ntify what may be further evidence of progress. Indications Depression, substance misuse, interpersonal relationship dif \201 - culties, p resentation in crisis or after self-harm. May be used with children and adolescents and peo ple with learning disability. 20_Semple_Chap20.indd 860 12/7/2012 4:32:57 PM SOLUTION-FOCUSED THERAPY 861 Ef \201 cacy Few controlled trials but some evidence of effectiveness for adults with depr ession and for children and adolescents with emotional and behavioral problems. Box 20.5 Solution-focused questions2 Problem-free talk How do you spend your time? What do you enjoy? What are you good at? How would your friends describe you? Preferred future (the miracle question) Imagine that tonight, while you are asleep, a mirac le happens and your hopes from coming here are realized (or the problems that bring you her e are resolved), but because you are asleep you don \200\231t realize this miracle has happ ened. What are you going to notice different about your life when you wake up that begins t o tell you that this miracle has happened? Exceptions When doesn \200\231t the problem happen? When doesn \200\231t it last as long? W hen does it feel less intense? When do you feel less upset by it? When do you manage to res ist the urge to \200 ? What are the signs that the miracle has already started to happen? Scales On a scale of 0 \200\22310, where 0 is the worst things have ever been and 10 repres ents your best hopes, where are you today? Where on that scale would be good enough, the po int that you would settle for? What are you doing that means you are at 2 and not at 0? If you are at 2 now, what will you be doing that will tell us that you have reached 3? Locating resources It sounds as if things are very stressful; how do you cope? What helps y ou to keep going? How did you manage to get here? What have you been doing that has stopped things from getting even worse? When you \200\231ve faced this sort of problem before, how did you resolve it? 1 De Shazer S (1985) Keys to solution in brief therapy. New York: Norton. 2 BRIEF (2007) BR IEFER: A solution-focused manual. London: BRIEF. 20_Semple_Chap20.indd 861 12/7/2012 4:32:57 PM CHAPTER 20 Psychotherapy 862 Counseling methods Counseling may be thought of as a method of relieving distress under- ta ken by means of a dialog between two people. The aim is to help the client or patient \201 nd their own solutions to problems, while being supported to do so and being guided by appropriate advice. In Western countries over the last \201 fty years, counseling has em erged as a profession in its own right and individual forms of speci \201 c counseling hav e been developed. In its more general sense \200\224helping others by the provision of advi ce, non-judgemental re \202 ection, and emotional support \200\224counseling takes place a ll over the world in the guise of family members, priests, tutors, teachers, etc. Counseling skills are integral to the practice of medicine, particularly in primary care an d psychiatry, where counseling techniques are useful in history-taking, assessing and ensur ing compliance, etc. Counseling should not be thought of as \200\230cut-down \200\231 or \200\230half-price \200\231 psychotherapy. There is clearly overlap in the methods and skil ls of a psychotherapist and a coun- sellor. However, the decision to use counseling as a sp eci \201 c treatment (e.g. for postnatal depression) should be made after considering both the disorder and the patient. There are a variety of counseling services in the voluntary and private sectors, some directed towards speci \201 c problems and some more general. Rationale Behavior and emotional life are shaped by previous expe- rience, current environm ent, and the relationships the individual has. Many life problems can be viewed as arising from resolvable dif \201 culties in one of these three areas, rather than as an \200\230i llness \200\231. People have a ten- dency towards positive change and ful \201 lment which can be retarded by \200\230life problems \200\231. A collaborative relationship with a co unselor (however de \201 ned) is one method of addressing these issues. This relationship will proceed according to agreed rules, towards a goal, and will be based on developing the client \200\231s strengths. Techniques \200 Information giving Key to all psychiatric treatment and psychotherapeutic work. Information should be provided in a form the patient can understand and information giving should not be a \200\230one-off \200\231 but should continue throughout counseling. Client-focused di scussion particularly beyond the early information gathering sessions. Time constraints may hinder this. Problem solving from cognitive behavioral therapy, are employed here. The bas ic goal is to use the session time to explore current and potential future problems and to help the client consider the optimum solution. The client should \200\230lead \200\231 the sessions, A variety of techniques, particularly those borrowed Different types of counseling \200 Information sharing/discussion psychoeducation. Aim is to properly inform a client prior to them making their own decision. Techniques of guided learning, providing verbal and written information, collaborative enquiry (cf. CBT). In some contexts is also called 20_Semple_Chap20.indd 862 12/7/2012 4:32:57 PM counseling METHODS 863 Crisis management opportunity to change/learn/develop. Short-term, immediately follows trau ma ( \201 rst few weeks). Facilitates adaptive and normal emotional responses, discourages maladaptive responses. Focus on end point of intervention. Alternative to hospital admissi on in some cases. Should have access to alternative treatments if necessary. Problem-based counseling problem (e.g. drug misuse, CSA). Counselor may or may not have had similar exper iences themselves. Risk counseling interventions, genetic counseling). Differentiated from other forms of counseling by the fact that the counselor is clearly \200\230the expert \200\231 and has access to specialist information. Nonetheless, the basic goal, of enabling the patient to come to their own decision, with appropriate information and support, remai ns the same. Views crisis as stressor providing both risk and Directed towards a speci \201 c primary Used to guide an informed decision (e.g. prenatal Indications Absolute advice limited by lack of comparative trials and tendency for local av ailability of services to be the main factor in the decision to use counseling methods. Cli nical usefulness in: \200 \200 \200 \200 \200 \200 \200 \200 \200 \200 Adjustment disorder. Mild depressive illness. Normal and pathological grief. Sequelae of ch ildhood sexual abuse. After other forms of trauma (e.g. rape, accidents). Postnatal depress ion. Pregnancy loss and stillbirth. Drug and alcohol problems. Reaction to chronic medical conditions. Prior to decision such as undergoing genetic testing or HIV testing. 20_Semple_Chap20.indd 863 12/7/2012 4:32:57 PM This page intentionally left blank 865 Chapter 21 Legal issues Introduction 866 The development of mental health law 868 Consent to treatment 870 Treatmen t without consent 872 Common law 874 Mental Capacity Act: England and Wales 876 Incapacity Act: Scotland 878 Mental Health Act: England and Wales 1 880 Mental Health Act: England and Wales 2 882 Mental Health Act: England and Wales 3 884 Mental Health Act: Scotland 1 886 M ental Health Act: Scotland 2 888 Mental Health Act: Northern Ireland 1 890 Mental Health Ac t: Northern Ireland 2 892 Mental Health Act: Republic of Ireland 1 894 Mental Health Act: R epublic of Ireland 2 896 Issues of con \201 dentiality 898 Breaking con \201 dentiality 9 00 Fitness to drive 902 DVLA requirements for speci \201 c psychiatric conditions 904 21_Semple_Chap21.indd 865 12/7/2012 4:33:30 PM CHAPTER 21 Legal issues 866 Introduction Practicing psychiatrists must be familiar with the laws in their country relat ing to mental health. There are \201 ve broad areas of law of interest to psychiatrists: (1) the common law as it relates to medical treatment decisions; (2) the law relating to in capable adults; (3) the law regulating the treatment of patients with mental disorder; (4) laws and regulations relating to con \201 dentiality; and (5) the criminal law in relation to mentally disordered offenders. In this book the subjects of criminal law and mentally disordered offend- ers are dealed wi th in Chapter 17, Forensic psychiatry. The remaining topics are covered within this chapter . As has been noted in the chapter on forensic issues, law is both parochial and dynamic. T he last decade has seen signi \201 cant changes in the laws relating to psychiatric practi ce, and further changes are likely over the decade to come. The current mental health and i ncapacity legislation covering the four legal jurisdictions within the British Isles is sum marized is Box 21.1. Although it is useful to have access to the relevant statute law, it is impossible to get a good understanding of how the law works in practice through reading the text of the legisl ation. This develops through train- ing, experience, and discussion with colleagues. The tr ainee psychiatrist should be aware of the current laws in their jurisdiction which affect t heir current area of practice. They should aim to have a detailed knowledge of the parts of the legislation used day to day, and particularly in emergency situations. Alongside the Acts themselves, codes of practice and guidance notes are available that give practical advice on the use of the Acts. Beyond these the trainee should know where to go for further information and advice (e.g. senior colleagues, hospital legal of \201 ce, com missions). They should be wary of mental health \200\230lore \200\231. Much misinformation about legislation is promulgated without reference to what is actually correct. For exampl e, some believe that UK legislation does not permit the detention of some- one who is drunk , even if they are also depressed or acutely psychotic. It is important to remember that the law often cannot resolve clinical dilemmas. For exampl e, if a detained patient takes an overdose, mental health legislation cannot be used to imp ose physical treatment. This does not mean that you can do nothing knowing that you are act ing (or not acting) legally. In this situation common law may allow, and medical ethics may dictate, that physical treatment be imposed. 21_Semple_Chap21.indd 866 12/7/2012 4:33:30 PM INTRODUCTION 867 Box 21.1 Legislation across the British Isles England and Wales Care and treatment of patients with mental disorder is regulated by the M ental Health Act 1983. Following failed attempts to produce a completely updated Act, the W estminster parliament passed the Mental Health Act 2007 in July 2007. This amends the 1983 Act in several important areas. The majority of its provisions will be enacted between Octo ber 2007 and October 2008. The Mental Capacity Act 2005, which regulates decision-making on behalf of incapable adults, was imple- mented in 2007. Scotland The Mental Health (Care and Treatment) (Scotland) Act 2003 replaced the previous M ental Health (Scotland) Act 1984 in October 2005. The Adults with Incapacity Act 2000 conso lidated and clari \201 ed the law relat- ing to incapable adults, replacing a number of ou tdated legal instruments which had previously been used for the role. This act received Roy al Assent in May 2000 and its provisions came into force between April 2001 and October 200 3. Northern Ireland Care and treatment of patients with mental disorder is regulated by the Me ntal Health (Northern Ireland) Order 1986, amended by the Mental Health (Amendment) (Northe rn Ireland) Order 2004. There is no spe- ci \201 c incapacity legislation. An independent and wide-ranging review of mental health law was initiated in 2002 under the chairmanship o f Professor David Bamford. The resulting report was published in August 2007 and proposed c omprehensive reform of mental health legislation and the introduction of incapacity legisla tion. Republic of Ireland The Mental Health Act 2001 replaced the Mental Treatment Act 1945 and v arious modifying Acts passed in 1953, 1961, and 1981. There is no speci \201 c incapacity legislation. 21_Semple_Chap21.indd 867 12/7/2012 4:33:31 PM CHAPTER 21 Legal issues 868 The development of mental health law Mental health legislation in the UK has its origins in the eighteenth century, which saw the passing of both the Vagrancy Law, allowing local mag istrates to order the con \201 nement of the \200\230furiously mad and dangerous \200\231 , and the Act for the Regulation of Private Madhouses which allowed for licensing and inspe ction of private asylums and required a medical certi \201 cate of insanity before the con \201 nement of \200\230non-pauper \200\231 patients. The former law primarily arose out of concerns about the risk posed to the general public by the mentally ill; the latter from concern to protect the interests of vulnerable patients. The Lunacy Act of 1890 gave magistrates authority to detain \200\230luna- tics, idiots and persons of unsound mind \200\231 within private asylums. The Mental De \201 ciency Act 19 13 expanded and clari \201 ed these powers, but also expanded the role of the state in the regulation and supervision of the care of the mentally disordered by reorganizing the Vict orian Lunacy Commission as the Board of Control for Asylums. This was established as a depa rtment of central government with powers to inspect asylums, to review compulsory detention , to investigate complaints about treatment of patients, and to monitor the working of the compulsory measures. In 1926 the Royal Commission on Lunacy and Mental Disorders pro- duced a report which led t o the Mental Treatment Act 1930. This Act was based on a view of mental disorders as simila r to medical illness and envisaged treatment and rehabilitation, rather than preventative d eten- tion, as the goal of admission to hospital. It allowed for outpatient work by medical staff in mental hospitals, and for the \201 rst time provided for voluntary treatment in hospital. In 1957 the report of the Royal Commission on the Law Relating to Mental Illness and Mental De \201 ciency (the Percy Report) was published. The Commission recommended that: \200 \230the law should be altered so that whenever possible suitable care may be provided for m entally disordered patients with no more restriction of liberty or legal formality than is applied to people who need care because of other types of illness \200\231, and noted that: \200\230the majority of mentally ill patients do not need to be admitted to hospital as i npatients \200\231. The subsequent Mental Health Act (1959) allowed most psychiatric admiss ions to occur voluntarily and changed the procedure for compulsory detention in hospital fr om a judicial to an administrative process. The Percy Report marked the turning point in of \201 cial policy from hospital-based to community-based systems of care. The 1983 Mental Health Act narrowed the de \201 nitions of categories of mental disorder, excluding certain categories of patient from compulsory treatment. It also established regu lations and safeguards governing treat- ment without consent. Similar Acts were passed for Scotland in 1984 and for Northern Ireland in 1986. At the end of the twentieth century the UK government established the Richardson Committee to again review mental health legislation in England and Wales, and a draft bill followed i n 2002. This attracted wide- spread criticism for a perceived over-emphasis on public prote ction and under-emphasis on the rights of individuals with mental disorder, seeming 21_Semple_Chap21.indd 868 12/7/2012 4:33:31 PM THE DEVELOPMENT OF MENTAL HEALTH LAW 869 to reverse progress made over the previous century. An Act amending rather than replacing t he 1983 Act was \201 nally passed in 2007. The most recent innovation in mental health law has been the pas- sage of Acts speci \201 cally covering the care and treatment of incapable patients \200\224in Scotland in 2000, an d in England and Wales in 2005. A future challenge for lawmakers across the British Isles i s the implementation of the rights speci \201 ed in the European Convention of Human Right s into UK and Irish mental health law. 21_Semple_Chap21.indd 869 12/7/2012 4:33:31 PM CHAPTER 21 Legal issues 870 Consent to treatment A fundamental principle of medical care is that treatment of a patient should be with their consent. A patient has a right to decide for themself which treatment s to undergo and which treatments to refuse. This right is retained even where refusal of t reatment could result in death or sig- ni \201 cant deterioration in health. In the majori ty of cases doctors should treat their patients according to this principle; treatment with out consent (b p. 872) is possible only in certain circumstances, constrained by appro- pri ate laws. Validity of consent For consent to be valid the patient must have capacity to make medical treatment decisions, the consent must be informed (i.e. the patient has fully understood th e details and implications of what is proposed), and it must be freely given (i.e. not give n under duress). Capacity to make treatment decisions Capacity is a legal concept meaning the ability to ent er into valid contracts. It is gained on adulthood and is presumed to be present throughout the lifespan unless permanently or temporarily lost. Under common law there is a presumpti on of capacity in adults \200\224i.e. it is to be assumed that an adult retains full capaci ty unless there is evidence that it has been lost. Assessments of capacity are made on the balance of probabilities. Capacity is not an \200\230all-or-nothing \200\231 quality \200\224i.e. one may have capac ity for some decisions but not others. Within incapacity law (b pp. 876 \200\2239), capacit y is divided into two broad categories \200\224capacity for \201 nancial deci- sions and capacity for personal welfare decisions. A patient \200\231s capacity or incapacity should be judged in relation to the required decision rather than being inferred from the presence of any mental illness or disability. In order to have capacity to make medical treatment decisions the patient must understand t he decision, understand the alternative possi- ble courses of action, assess the merits and risks of these choices, retain memory of the decisions and the reasons for them, and be ab le to com- municate their intent. Informing consent Doctors have a duty to provide to the patient suf \201 cient information about any proposed treatment to enable them to make an informed treatment decision. The am ount and type of information provided will depend on the nature of the condition, the compl exity and risks of the proposed treatment, the clinical situation, and the patient \200\231 s own wishes. The aim should be to provide the patient with a balanced and accurate view of their diagnosis and prognosis, the nature and purpose of the proposed treatment, any alter native treatment options, and the likely risks and side- effects, answering any questions h onestly and only withholding informa- tion if its disclosure would cause the patient seriou s harm. 21_Semple_Chap21.indd 870 12/7/2012 4:33:31 PM CONSENT TO TREATMENT 871 Forms of consent Consent may be implied (i.e. the patient does not object to, and cooper- a tes with, the procedure) or may be express (i.e. oral or written per- mission is explicitly asked for and recorded, often on a detailed consent form). Generally, express consent is o btained for non-trivial or invasive procedures, and for some interventions (e.g. operations ) it is mandatory. Advance statements Sometimes, in cases where a patient has a progressive disease, although they currently lack capacity to consent or refuse treatment, they may, when greater capacit y existed, have indicated their treatment preferences in an advance statement ( \200\230adv ance directive \200\231 or \200\230living will \200\231). These wishes should be given due regard provided: \200 The decision in the advance statement is clearly applicable to the present circumstances. \200 There is no reason to believe that the patient has changed their mind. If you act aga inst an advance statement, then you should be able to justify this. Where such a statement is not available, the patient \200\231s known wishes should be taken into account using the common law principle of \200\230best interests \200\231 (b p. 874). You must be satis \201 ed that you have consent or other valid authority before you undert ake any examination or investigation, provide treat- ment or involve patients in teaching o r research. Usually this will involve providing information to patients in a way they can u nderstand, before asking for their consent. You must follow the guidance in \200\230Seekin g patients \200\231 consent: The ethical considerations \200\231, which includes advice on children and patients who are not able to give consent. General Medical Council (2006) Good medical practice, paragraph 36 21_Semple_Chap21.indd 871 12/7/2012 4:33:31 PM CHAPTER 21 Legal issues 872 Treatment without consent In general, treatment of a patient can and should only proceed wi th their valid consent. There are, however, situations where treatment can take place witho ut consent, and these situations (appropriately) have legal safeguards. There are four broa d areas where treatment may take place despite lack of consent: (1) treatment undertaken un der common law; (2) treatment under the provisions of an incapacity act; (3) treatment unde r the provisions of a mental health act; and (4) treatment authorized by a court. For psychiatrists, the majority of treatment decisions involving consid- eration of non-con sensual treatment will relate to psychiatric patients. However, in other \201 elds of med icine, situations may arise where decisions must be made regarding treatment without consen t. Often a psychiatrist \200\231s opinion will be sought because, by the nature of their wo rk, most psy- chiatrists will have greater knowledge of, and familiarity with, legal issues than their medical counterparts. Also, a patient \200\231s reasons for withholding consent may be thought to be due to a (possibly undiagnosed) mental disorder. Where this is the ca se, other professionals may not feel they have the clinical skills to make this diagnosis. Treatment undertaken under common law As noted on b p. 874, common law \200\230necessity \200\231 may provide a doctor with a defense against assault where non-consensual treatment is given. There may be situations, for example the use of sedation in a patient with acute behavioral disturbance where there is a suspected physical or psychiatric cause, when the doctor has to act against a patient \200\231s wishes, in order to adequately carry out thei r duty of care. Treatment in these situations is given under common law even if the patient ful \201 ls the criteria for emer- gency detention under mental health legislation. Treatment under the provisions of an incapacity act The Mental Capacity Act 2005 and the Ad ults with Incapacity (Scotland) Act 2000 provide the legal framework guiding the care of in capable adults in England and Wales, and in Scotland respectively. These Acts de \201 ne i ncapacity and establish processes and safeguards regulating decision- making on behalf of i ncapable adults. Treatment under the provisions of a mental health act The majority of patients with mental disorder receive treatment informally and with their consent. For a proportion, however, tr eatment is author- ized by a mental health act. Four mental health acts cover the four lega l jurisdictions within the British Isles. These vary, but all allow for detention in hospit al and for compulsory treatment of mental disorder. They all specify restrictions on the us e of certain treatments (psychosurgery, ECT, and compulsory prescription of medication beyo nd a certain period) and describe processes of appeal and oversight of the treatment of det ained patients. In general, treatment of unrelated medical disorders cannot be authorized b y a mental health act. 21_Semple_Chap21.indd 872 12/7/2012 4:33:31 PM TREATMENT WITHOUT CONSENT 873 Treatment authorized by a court In a small number of cases doctors will ask for a court \200\231s decision regarding a decision to treat a patient without their consent. In genera l these will be non-urgent but potentially controversial cases where statute law has no cle ar role and where there does not appear to be any relevant legal precedent. Often the judge ments in these test cases become important subsequently in guiding the approach to similar cases. 21_Semple_Chap21.indd 873 12/7/2012 4:33:31 PM CHAPTER 21 Legal issues 874 Common law Common law is that body of law which is derived from previous deci- sions of the courts, in contrast with statute law \200\224which is law created by legislative bodies (e .g. regional, national, and supranational parliaments). Common law can arise from: \200 \200 \200 Long established custom and practice. Clari \201 cation of the meaning and extent of statu te by the courts. Statements of law by judges ruling on cases where no applicable law exist s or \201 ts precisely. The common law is dynamic and changes and expands as cases are heard and judgements are han ded down. For this reason it is impossible to be aware of all potentially applicable judgem ents. Doctors should make every effort to be up to date with current debates and decisions within their own specialty. They should also seek clari \201 cation from senior colleagues , their hospital legal advisors or their professional bodies in potentially con- tentious c ases. Common law principles for medical treatment decisions \200 Act in accordance with the patient \200\231s wishes: a fundamental principle of the doctor \200\223patient relationship. Doctors should, in general, respect the patient \200\231s aut onomy in decision-making, only acting against the patient \200\231s wishes in very limited circumstances. a patient over the age of 16 is presumed to Presume capacity in adults: have capacity to make treatment decisions unless there is evidence to the contrary (assessed on the balance of probabilities). Apply \200\230reasonableness \200\231 test: is the test of what a hypothetical \200\230reasonable man \200\231 would do in the circumstances. For me dical treatment decisions the test is what the \200\230reasonable doctor \200\231 would ha ve done in those circumstances. Act in the patient \200\231s \200\230best interests \200 \231: in emergency situations, it may not be possible to obtain consent (e.g. in an unconsc ious RTA victim requiring drainage of an extradural haematoma); here, it is accepted that t he doctor \200\231s overriding duty is to preserve life. Doctrine of necessity: criminal ch arge that you have assaulted a patient by giving non- consensual treatment. A doctor may th erefore give emergency treatment to preserve life and prevent signi \201 cant deterioratio n in health. Act in accordance with a recognized body of opinion: that medicine is not an e xact science \200\224that in any situation, multiple courses of action may be potentially r easonable. However, there is an expectation that any treatment decision is considered suita ble by a body of professional opinion (the \200\230Bolam test \200\231). Act in logically defensible manner: a consideration to the Bolam test by stating that medical decisions made must, in addition to being in accordance with a recognized body of opinion, be logically d efensible in the circumstances. a frequently used consideration in law \200\230necessity \200\231 provides a defense against a potential it is accepted in law the Bolitho case (see Box 21.2) added 21_Semple_Chap21.indd 874 12/7/2012 4:33:31 PM COMMON LAW 875 Consider use of applicable law: whether the provisions of any statute law provide guidance and addition protections for the patient. However, they should not delay urgent treatment t o enact the provisions of statute law. Consider request for court judgment: more experience d colleagues; where appropriate, seek legal advice on whether it is appropriate to apply to the court for a ruling. the treating doctor should consider in dif \201 cult situations consult Box 21.2 Signi \201 cant rulings The Gillick case1 Victoria Gillick, a mother of \201 ve daughters, challenged the right o f her local health authority to advise doctors that contraceptives could be prescribed for under-16s without parental consent. The House of Lords ruled that, in relation to medical t reatment, \200\230the parental right to determine whether or not their minor child below t he age of 16 will have medical treat- ment terminates if and when the child achieves suf \201 cient understanding and intelligence to understand fully what is proposed \200\231. Th is ruling established the concept of \200\230Gillick competence \200\231 which applies to treatment decisions made by minors in England and Wales. Section 2(4) of the Age of Legal C apacity (Scotland) Act 1991 established the same principle within Scottish statute law. The Bolitho case2 Prior to this case, the standard of care expected in medical negligence c ases had been judged according to the \200\230Bolam test \200\231.3 This established the p rinciple that a doctor is not guilty of negligence if he has acted in accordance with a res ponsible body of professional opin- ion. This case centered on an individual who, as a chil d, had suffered brain damage as a result of a cardiac arrest induced by respiratory failure . The court \200\231s \201 nding was that, even if a body of professional opinion existed which held that the action was reasonable, the defendant could still be judged negligent i f the judge held the opinion that no logical basis for the opinion had been shown to the co urt. The Ms B case4 As a result of a serious illness a Ms B had been rendered paralyzed and dependent on arti \201 cial ventilation for survival. She refused consent for continued v entilation but, in view of the inevitable fatal out- come, the hospital refused to accept h er refusal. She was assessed by several consultant psychiatrists whose opinion was that she retained full capacity. She applied for a court decision where the ruling was that, once h er capacity had been established, any further treatment without con- sent was unlawful. The court also gave the opinion that, should doctors treating her feel unable to treat her in accordance with her wishes, they had a duty to transfer her care to other doctors. Ms B was subsequently transferred to another hospital where, following withdrawal of arti \201 cia l ventilation, she died. 1 Gillick v West Norfolk and Wisbech AHA ALL ER [1985], 3 ALL ER 4 02. 2 Bolitho v City and Hackney HA [1997] 3 WLR. 3 Bolam v Friern Hospital Management Comm ittee [1957] 2 All ER 118. 4 Re B (Adult: Refusal of Treatment) [2002] 2 FCR1; [2002] 2 All E R. 449. 21_Semple_Chap21.indd 875 12/7/2012 4:33:31 PM CHAPTER 21 Legal issues 876 Mental Capacity Act: England and Wales The Mental Capacity Act 2005 provides the legal fram ework guiding deci- sion-making on behalf of those who lack capacity to make decisions for themselves. The Act applies to individuals over the age of 16 in England and Wales. The Act introduces a new criminal offense of ill treatment or neglect of a person who lacks capaci ty. Principles The Act is underpinned by a set of \201 ve key principles set out in Section 1 . \200 Presumption of capacity is established that they lack capacity. All practical steps taken t o allow autonomy treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. Allow unwise decisions make an unwise decisio n. Best interests lacks capacity must be in their best interests. Least restrictive option a person who lacks capacity should restrict as little as possible their basic rights and fr eedoms. A person is assumed to have capacity unless it A person is not to be A person is not incapable merely because they An intervention under the Act on behalf of a person who Any intervention under the Act on behalf of Assessment of incapacity Sections 2 and 3 of the Act set out a two-stage test for assessing incapacity: \200 A person lacks capacity if he is unable to make a decision for himself in relation to any m atter because of a permanent or temporary impairment in the functioning of the mind. A pers on is unable to make a decision for himself if he is unable: \200 \200 \200 to understand the information relevant to the decision; to retain that information for a su f \201 cient period to make a decision; to use or weigh that information as part of the pr ocess of making the decision; to communicate his decision. Judgements about incapacity are to be made on the balance of probabili- ties. Lack of capac ity is not to be presumed based on a person \200\231s age or appearance, on any aspect of h is behavior, on any condition or disorder from which he suffers. The Act speci \201 es cer tain decisions that cannot be made by one person on behalf of another. These are: agreeing to marriage, civil partnership or divorce, consent to a sexual relationship, and casting a ballot in an election. Techniques covered by the Act Lasting Powers of Attorney (LPA) A person may appoint an attorney to act on his behalf if h e should lose capacity in the future. This is like the current Enduring Power of Attorney ( EPA) in relation to property and affairs, but the Act also allows people to empower an atto rney to make health and 21_Semple_Chap21.indd 876 12/7/2012 4:33:31 PM MENTAL CAPACITY ACT: ENGLAND AND WALES 877 welfare decisions. Before it can be used an LPA must be registered with the Of \201 ce of the Public Guardian. Court appointed deputies The Act provides for a system of court appointed deputies to repla ce the current system of receivership in the existing Court of Protection. Deputies will be able to be appointed to take decisions on welfare, health care, and \201 nancial matters as authorized by the new Court of Protection, but will not be able to refuse consent to li fe-sustaining treatment. They will only be appointed if the Court cannot make a one-off dec ision to resolve the issues. Advance decisions The Act allows patients to make an advance decision to refuse treatment i f they should lack capacity in the future. The Act sets out safeguards of validity and appl icability in relation to advance decisions. Where an advance decision concerns treatment th at would be necessary to sustain life the decision must be in writing, signed and witnessed , and there must be an express statement that the decision stands \200\230even if life is at risk \200\231. Protection from liability when providing care and treatment to an incap- able adult Section 5 of the Act authorizes health care staff to carry out personal care, health care, and med ical treatment in an incapable adult without fear of liability. The care provider must esta blish that the patient lacks capacity, and that the proposed treatment is in their best int erest. If this is the case then the care provider does not incur any liability in relation to the Act that they would not have incurred if the adult had had capacity to consent in re lation to the matter, and had consented to the treatment. Where the proposed treatment involves physical restraint, the care provider must additional ly ensure that it is necessary in order to pre- vent harm and that it is a proportionate re sponse to the likelihood of the patient suffering harm, and the seriousness of that harm. S ection 5 does not authorize acting in a way which con \202 icts with decisions made by a l ast- ing power of attorney or court-appointed deputy; however, life-sustaining treatment or treatment necessary to prevent serious deterioration is acceptable while a decision is sou ght from the court. Bodies with powers under the Act Court of Protection This Court has jurisdiction relating to the whole Act. It will have its own procedures and nominated judges. It will be able to make declarations, decisions, and orders affecting people who lack capacity and make decisions for or appoint deputies to mak e decisions on behalf of people lacking capacity. It will deal with decisions concerning bo th prop- erty and affairs, as well as health and welfare decisions. The Public Guardian has several duties under the Act and will be sup- ported in carrying th ese out by an Of \201 ce of the Public Guardian (OPG). The Public Guardian and his staff w ill be the registering authority for LPAs and deputies. They will supervise deputies appoin ted by the Court and provide information to help the Court make decisions. 21_Semple_Chap21.indd 877 12/7/2012 4:33:32 PM CHAPTER 21 Legal issues 878