Trevor – scenario for training
Mental Capacity Act workbook
Commissioned by, and hosted here on the MCA Directory on behalf of, the members of the NHS Eastern Region Safeguarding Adult Forum facilitated by Eleanor Sherwen & Sarah Robinson.
View here online or order a DVD or workbook
For participants to recognise that
- The principles of the Mental Capacity Act are law
- Assessment of capacity must be decision specific
- People (the patient) can make decisions that are unwise which may result in serious consequences to their health
- If it is decided that the person lacks capacity, the decision maker- the surgeon, must make a best interests decision based on; a balance sheet approach, consultation and taking into account the patient’s current views and wishes as well as any expressed previously.
- There are decisions that may need to be discussed with legal services for support and potential referral to Court of Protection
Trevor is 82, he lives alone, has two children. Trevor has always been very active and was quite sporty when he was younger. He has lived on his own since the death of his wife. He is fiercely independent and reluctant to receive any help around the home even from his own children. His daughter, Gemma, lives about an hour and half away by car from him but visits when she can. He still keeps an old dog and struggles to look after it and take it for walks. Trevor had a bad fall about 2 months ago when he was trying to repair a wall and cut his leg deeply. He didn't seek treatment at the time, he now has a serious infection and he has contracted gangrene.
He has some heart failure, increasing signs of dementia and memory loss. There have been concerning episodes of risky behaviour associated with his increasing forgetfulness.
Current decision making issues for the professionals involved
Trevor has been admitted to hospital following his daughter contacting his GP. His health has rapidly deteriorated due to the infection in his leg. He is now receiving an intravenous antibiotic treatment. Mr Aslam the consulting surgeon feels that Trevor is not fully appreciating the gravity of his situation as he is refusing surgery. The surgeon is concerned about Trevor’s fluctuating capacity. There is no Lasting Power of Attorney in place for health and welfare. He is now consulting Trevor's daughter Gemma, to see if he can find out more background information that will help with understanding his initial assessment of Trevor’s’ mental capacity and give information that may be needed if a best interests decision is to be made.
The ethical decision
The dilemma for the doctor is whether Trevor has capacity: if he does have capacity then he can’t treat him without his consent. The preferred treatment option is surgery, without which, Trevor may die. If the decision is reached that he doesn't have capacity, how far should the doctor take into account Trevor’s past and present wishes i.e. he would not want surgery and couldn't cope with a disability?
Discussion: do you feel from what you have seen and heard that an assessment of capacity should be carried out? (Think principle one of the mca)
Discussion: how should the assessment of capacity be carried out?
- What do you believe to be the specific question (decision) that the assessment of capacity should be based on?
- How specifically is the diagnostic element of the test met?
- What would you anticipate to be the relevant type of information that should be given to Trevor for this decision? How can Trevor be supported?
- Where should the bar be set concerning Trevor’s ability to weigh up the relevant information?
- Where someone has apparent fluctuating capacity, what is best practice in situations where there are issues of consent to treatment?
- How would an assessment of capacity be recorded?
- What guidance does the Code of Practice give that you would need to take into account in such a situation? (chapter 4)
Discussion: if it is decided that trevor lacks capacity about this specific decision, how would you approach making a best interests decision?
- What would you need to take into account? What options are there?
- Who would you involve in the process of best interests decision making?
- How could you involve Trevor in the process of best interests decision making?
- What weighting would you give Trevor’s past and present wishes?
- How would you expect the least restrictive principle to be demonstrated in Trevor’s situation?
- In what circumstances would you need to refer for legal advice?
- How would you record a best interests decision? For example, using a balance sheet approach
- What guidance does the Code of Practice give about best interests decision making? (chapter 5)
- What is your decision for Trevor?
Poll question 1
Do you believe it is in Trevor’s best interests to have surgery (amputation?)
- Do you believe it is in Trevor’s best interests to have surgery (amputation?)
Poll question 2
Would you refer Trevor’s situation to your legal services for advice?
- Not sure
- Would you refer Trevor’s situation to your legal services for advice?
Cases from the court of protection
Case B this was in relation to a gentleman who needed an amputation of his foot because of a serious infection. He lacked capacity and had a history of mental illness. Decision: not in best interests to have surgery
Wye Valley NHS Trust and Mr. B (by his litigation friend, the Official Solicitor)  EWCOP 60, that came before the Court of Protection the judge’s decision was that the person did not have capacity and then went onto provide a detailed analysis in a “balance sheet” approach.
He concluded that it would not be in the gentleman’s best interests because:
Para 45 “I am quite sure that it would not be in Mr. B's best interests to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite and which could only be achieved after a traumatic and uncertain struggle that he and no one else would have to endure. There is a difference between fighting on someone's behalf and just fighting them. Enforcing treatment in this case would surely be the latter”.
Case two Ms. Ab, a woman who lacked capacity in relation to surgery i.e. an above the knee amputation and had mental health issues. Best interests decision: surgery.
Surrey and Sussex Healthcare NHS Trust and Ms. AB  EWCOP 50, the judge concluded that the woman lacked capacity about her need for an amputation above the knee; a detailed analysis of the best interests was made. Para 60-62 he concluded that she should have the medical treatment of an above knee amputation.
“I am acutely conscious that to give permission for the amputation of Ms. AB's left leg contrary to her expressed wishes is an extremely serious step to take. I have given this matter the most careful and earnest consideration. I must only grant permission if I am satisfied that no other course will save Ms. AB's life and avert her imminent death. In all of those circumstances and balancing the disadvantages of the proposed surgery (paragraphs (a)-(d)) with the advantages (paragraphs (e)-(h) above), I am completely satisfied that, very sadly, the only best interests decision I can make is to give permission for the above knee amputation of Ms. AB's left leg to be undertaken. I approve the use of reasonable restraint before, during and subsequent to surgery as is necessary to safeguard and protect her, including sedation. Further, I authorise the deprivation of her liberty insofar as it is necessary to perform the procedure.”