Legal and Mental Capacity in Healthcare Decisions
Louise Lawlor
Clinical Specialist Occupational Therapist
Care of the Elderly Services
Beaumont Hospital
Background
Dementia in Acute Care Training
Assisted Decision Making working party in Beaumont
Hospital
Advocate for HomeFirst ethos in Frail elderly patients
Embracing risk methodology in Occupational Therapy
Worked in Neurology with patients with life limiting
conditions
Advocate for patients in terms of discharge planning
Member of Multidisciplinary Team involved in
supporting decision making
Definition
Legal capacity is defined as being recognised as a
person who can make decisions. It includes the
capacity to be both a holder of rights and an actor
under the law [the ability to exercise those rights].
Mental capacity is defined as the ability of a person to
understand the nature and consequences of a decision
to be made by him or her, in the context of the
available choices at the time the decision is to be
made.
Legislation
Lunacy Regulation Act 1871
Powers of Attorney Act 1996
Advance Healthcare Directives
Wards of Court
Common Law – functional approach generally
supported
Property matters primary focus but not rights
Assisted Decision Making (Capacity) Act 2015
In the midst of legislative change – not yet fully
enacted
Guidance Documents
HSE Consent Policy 2013
Guide to Professional Conduct and Ethics for
Registered Medical Practitioners 8
th
Edition 2016
Supporting People’s Autonomy: a guidance document.
Health Information and Quality Authority 2016
Guidance document for HSCPs -
Draft
2017
Functional Approach to Capacity
Time and Decision Specific
Weigh up the information provided
Communicate a choice
“Capacity is defined as the person’s ability to
understand at the time a decision is to be made, the
nature and consequences of the decision to be made
by him or her, in the context of available choices at
that time”
Assisted Decision-Making (Capacity) Act 2015:
A guide for Health and Social Care Professionals (March 2017)
Presumption of Capacity
Every person has capacity irrespective of
Disability
Behaviour
Communication Difficulties
Age
Gender
Beliefs
Medical/Psychosocial condition
And this should not be in question unless there is a clear
trigger
to indicate otherwise
Not
triggers for questioning capacity
What is deemed as an “unwise” decision
Reports of concerns other than the individual that are
not supported by evidence
Decision goes against professional advice
All of the information/options have not been provided
Information provided has not been explained
appropriately for needs of individual
History of cognitive or communication impairment
Promoting Autonomy
Supported by HIQA – guidance document for staff and
information leaflet for service users available
Involves 6 steps:
Respect the person’s right to autonomy
Avoid pre-judging
Communicate appropriately to establish, explore and
promote preferences
Balance rights, risks and responsibilities
Agree person-centred supports
Implement and evaluate supportive actions
Balancing risks and rights
Autonomy should be used to enable the individual to
make decisions
Allowing a compromised individual to “do as they
wish” without appropriate assessment and support is
NOT supporting autonomy
Positive risk – acknowledges the role of risk
assessment in facilitating people’s will and preferences
Try to avoid blanket terms like “unsafe” and focus on
needs assessment and appropriate interventions
Role of family / carers
Common misconception that decisions can be made
by “Next of Kin”
“No other person such as a family member, friend or
carer and no organisation can give or refuse consent to
a health and social care service on behalf of an adult
who lacks capacity to consent unless they have specific
legal authority to do so”
HSE Consent Policy (2013)
General advice for supporting
decision making
Be Specific
Use clear communication
Provide information
Offer Choices
Always remember !
Decisions are
time
and
issue
specific
So
never
an all or nothing approach but a continuum
Environmental Considerations
Quiet environment- limit distractions
Privacy - who should be present given the likelihood of
delicate information
Context - Formal interaction rather than bedside
discussion
Consider type of room – avoid stimulating
environment , ensure privacy via door signage
Hearing Impairment
Written Information
Quiet environment
Avoid background noise or distractions
Close to the patient – as required
Hearing aids
Check understanding – ask patient to repeat outcome
to ensure they have understood all of the information
Cognitive Impairment
Capacity assessment is
not
a memory test
Written notes
Written information leaflets that are easy to
understand
Options are clearly indicated
Simplify information as required – but not “baby talk”
Avoid medical jargon/abbreviations
Check understanding
Repeat if necessary
Visual Impairment
Large print if providing written information
Use of contrast
Avoid information leaflets with shiny effects/busy
layout
Quiet, distraction free environment
Ensure patient aware of persons present
Check understanding
Communication Deficits
Referral to Speech and Language Therapist for advice
specific to the patient’s needs
Use of simplified language
If English not first language, use an official interpreter.
It is not advisable/appropriate to use a staff member of
the same nationality or family member.
Clarity surrounding the main points
Picture format alongside words
Use of communication aids as appropriate e.g.
Litewriter, alphabet board
Practice Considerations
It is the responsibility of ALL staff to support patients
to make decisions
Consider supports required for patients
Ensure your documentation reflects the interactions
regarding decision making
Useful to familiarise yourself with the Act and other
guidance documents- available online
Risk assessment and be specific with
recommendations
Case by case basis – each situation is unique
Case 1 - Mary
Mary is a 89 year old lady with a history of cognitive
impairment. She presented to hospital following a fall.
She lives in a bungalow, has a HCP of 3 calls daily and
mobilises using a rollator zimmerframe. She has had a
history of falls and urinary incontinence and a
tendency to leave her used incontinence wear around
the home. She is a smoker and has a number of old
newspapers under the chair where she spends a lot of
her time. She is requesting to return home however
the MDT have a number of concerns regarding the
risks associated with this decision.
What are your thoughts?
Case 2 - Donal
Donal has a diagnosis of Motor Neuron Disease.
Recently, he has been having significant difficulty with
his swallow. Following an assessment by a Speech and
Language Therapist, a modified diet has been
recommended. Donal does not enjoy the food he is
currently eating and would prefer to eat other
consistencies of foods. These are foods that could put
him at risk of aspiration and choking. His family are
concerned regarding his behaviour and have
highlighted this issue to the team.
What are your thoughts?
Case 3 - John
John is a 68 year old man with COPD. He has had
recurrent exacerbations and recent admissions to
hospital. He had an ABG and 6 minute walk test and it
has been recommended that he now have home oxygen
in place. John reports he would not like to “turn his
house into a hospital” and would like to return home
without the oxygen in place. The respiratory consultant
has advised John that the oxygen is essential and the
risks of returning home without it in place.
What are your thoughts?
Useful Further Reading
HSE website :
www.hse.ie
HSE Consent Policy (2013)
Guide to Professional Conduct and Ethics for
Registered Medical Practitioners 8
th
Edition (2016)
Supporting People’s Autonomy: a guidance document.
Health Information and Quality Authority (2016)
Guidance document for HSCPs -
Draft
(2017)
Embracing Risk: Enabling Choice. Royal College of
Occupational Therapists (2018)
Questions
Clinical specialist occupational therapist, Louise Lawlor, advocates for patients' rights and decision-making capacity in healthcare settings. She emphasizes the importance of legal and mental capacity in making informed decisions, highlighting relevant legislation, guidance documents, and a functional approach to assessing capacity. The presumption of capacity is a fundamental principle, irrespective of disability or other factors.
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Presentation Transcript
Louise Lawlor Clinical Specialist Occupational Therapist Care of the Elderly Services Beaumont Hospital
Background Dementia in Acute Care Training Assisted Decision Making working party in Beaumont Hospital Advocate for HomeFirstethos in Frail elderly patients Embracing risk methodology in Occupational Therapy Worked in Neurology with patients with life limiting conditions Advocate for patients in terms of discharge planning Member of Multidisciplinary Team involved in supporting decision making
Definition Legal capacity is defined as being recognised as a person who can make decisions. It includes the capacity to be both a holder of rights and an actor under the law [the ability to exercise those rights]. Mental capacity is defined as the ability of a person to understand the nature and consequences of a decision to be made by him or her, in the context of the available choices at the time the decision is to be made.
Legislation Lunacy Regulation Act 1871 Powers of Attorney Act 1996 Advance Healthcare Directives Wards of Court Common Law functional approach generally supported Property matters primary focus but not rights Assisted Decision Making (Capacity) Act 2015 In the midst of legislative change not yet fully enacted
Guidance Documents HSE Consent Policy 2013 Guide to Professional Conduct and Ethics for Registered Medical Practitioners 8thEdition 2016 Supporting People s Autonomy: a guidance document. Health Information and Quality Authority 2016 Guidance document for HSCPs - Draft 2017
Functional Approach to Capacity Time and Decision Specific Weigh up the information provided Communicate a choice Capacity is defined as the person s ability to understand at the time a decision is to be made, the nature and consequences of the decision to be made by him or her, in the context of available choices at that time Assisted Decision-Making (Capacity) Act 2015: A guide for Health and Social Care Professionals (March 2017)
Presumption of Capacity Every person has capacity irrespective of Disability Behaviour Communication Difficulties Age Gender Beliefs Medical/Psychosocial condition And this should not be in question unless there is a clear trigger to indicate otherwise
Not triggers for questioning capacity What is deemed as an unwise decision Reports of concerns other than the individual that are not supported by evidence Decision goes against professional advice All of the information/options have not been provided Information provided has not been explained appropriately for needs of individual History of cognitive or communication impairment
Promoting Autonomy Supported by HIQA guidance document for staff and information leaflet for service users available Involves 6 steps: Respect the person s right to autonomy Avoid pre-judging Communicate appropriately to establish, explore and promote preferences Balance rights, risks and responsibilities Agree person-centred supports Implement and evaluate supportive actions
Balancing risks and rights Autonomy should be used to enable the individual to make decisions Allowing a compromised individual to do as they wish without appropriate assessment and support is NOT supporting autonomy Positive risk acknowledges the role of risk assessment in facilitating people s will and preferences Try to avoid blanket terms like unsafe and focus on needs assessment and appropriate interventions
Role of family / carers Common misconception that decisions can be made by Next of Kin No other person such as a family member, friend or carer and no organisation can give or refuse consent to a health and social care service on behalf of an adult who lacks capacity to consent unless they have specific legal authority to do so HSE Consent Policy (2013)
General advice for supporting decision making Be Specific Use clear communication Provide information Offer Choices Always remember ! Decisions are timeand issuespecific So neveran all or nothing approach but a continuum
Environmental Considerations Quiet environment- limit distractions Privacy - who should be present given the likelihood of delicate information Context - Formal interaction rather than bedside discussion Consider type of room avoid stimulating environment , ensure privacy via door signage
Hearing Impairment Written Information Quiet environment Avoid background noise or distractions Close to the patient as required Hearing aids Check understanding ask patient to repeat outcome to ensure they have understood all of the information
Cognitive Impairment Capacity assessment is nota memory test Written notes Written information leaflets that are easy to understand Options are clearly indicated Simplify information as required but not baby talk Avoid medical jargon/abbreviations Check understanding Repeat if necessary
Visual Impairment Large print if providing written information Use of contrast Avoid information leaflets with shiny effects/busy layout Quiet, distraction free environment Ensure patient aware of persons present Check understanding
Communication Deficits Referral to Speech and Language Therapist for advice specific to the patient s needs Use of simplified language If English not first language, use an official interpreter. It is not advisable/appropriate to use a staff member of the same nationality or family member. Clarity surrounding the main points Picture format alongside words Use of communication aids as appropriate e.g. Litewriter, alphabet board
Practice Considerations It is the responsibility of ALL staff to support patients to make decisions Consider supports required for patients Ensure your documentation reflects the interactions regarding decision making Useful to familiarise yourself with the Act and other guidance documents- available online Risk assessment and be specific with recommendations Case by case basis each situation is unique
Case 1 - Mary Mary is a 89 year old lady with a history of cognitive impairment. She presented to hospital following a fall. She lives in a bungalow, has a HCP of 3 calls daily and mobilises using a rollator zimmerframe. She has had a history of falls and urinary incontinence and a tendency to leave her used incontinence wear around the home. She is a smoker and has a number of old newspapers under the chair where she spends a lot of her time. She is requesting to return home however the MDT have a number of concerns regarding the risks associated with this decision. What are your thoughts?
Case 2 - Donal Donal has a diagnosis of Motor Neuron Disease. Recently, he has been having significant difficulty with his swallow. Following an assessment by a Speech and Language Therapist, a modified recommended. Donal does not enjoy the food he is currently eating and would prefer to eat other consistencies of foods. These are foods that could put him at risk of aspiration and choking. His family are concerned regarding his highlighted this issue to the team. diet has been behaviour and have What are your thoughts?
Case 3 - John John is a 68 year old man with COPD. He has had recurrent exacerbations and recent admissions to hospital. He had an ABG and 6 minute walk test and it has been recommended that he now have home oxygen in place. John reports he would not like to turn his house into a hospital and would like to return home without the oxygen in place. The respiratory consultant has advised John that the oxygen is essential and the risks of returning homewithout it in place. What are your thoughts?
Useful Further Reading HSE website : www.hse.ie HSE Consent Policy (2013) Guide to Professional Conduct and Ethics for Registered Medical Practitioners 8thEdition (2016) Supporting People s Autonomy: a guidance document. Health Information and Quality Authority (2016) Guidance document for HSCPs - Draft (2017) Embracing Risk: Enabling Choice. Royal College of Occupational Therapists (2018)
