Re: When and how to treat patients who refuse treatment
We thank Brindle et al and Davies for highlighting that the Mental Capacity Act 2005 (MCA), as detailed in its Code of Practice (1), can be used for emergency treatment where there is insufficient time for a fuller capacity assessment. As they accurately point out, in emergency situations the threshold for concluding a person lacks capacity for the decision in hand is lowered and a ‘reasonable belief’ of incapacity is all that is required; consequently the expected detail of capacity assessments in such situations will be proportional to the severity of the emergency and the resulting time available for assessment. It is also important to note that this proportionality also applies to the time available for considering what treatment (if any) is in the patient’s best interests.
On a technical level the MCA essentially codifies previous common law so in reality these two legal frameworks are less separable than suggested in our article, which attempts to distil this complex (and evolving) area of law, together with the Mental Health Act, into practical advice for non-specialist clinicians. Although, as Davies rightly points out and as the courts have emphasised, statutory law (Acts of Parliament such as the MCA) should indeed be used instead of common law when applicable, there are a number of situations when it is not applicable. Some of these situations are relatively straightforward as the MCA was not designed to cover them, for example patients under the age of 16 or, as mentioned by Brindle et al., when the intervention is for the protection of others (e.g. a the restraint and sedation of a violent patient in the Emergency Department).
However there are also some more complex situations where ‘lacunae’ (i.e. holes or gaps) in statutory law such as the MCA exist, which were unforeseen when the Act was passed and where it becomes necessary to fall back on common law to fill these gaps. One such situation may be where a patient is refusing treatment due to duress (e.g. excessive coercion) from another person such as a spouse or relative. In such situations the second ‘functional’ stage of a capacity assessment is failed (most likely by failing to adequately weigh up information pertaining to the decision), but the first stage is not failed as there is no ‘abnormality of brain or mind’, thus rendering the second stage irrelevant. This means that there would be no grounds to conclude capacity is absent as defined by the MCA. In such a situation, we would strongly recommend that legal advice is sought urgently because it may very well be that an application to court is required. There may be other gaps, not yet identified by the courts, which would require falling back to common law.
Despite these complexities we acknowledge that our article requires correction, particularly with regard to any implication that the MCA is not applicable to emergency situations and that it is the most appropriate legal framework for part 1 of the evolving case scenario; a correction will be published shortly.
A key finding of the recently published House of Lords Select Committee’s post legislative review of the MCA(2) was that “The Act has suffered from a lack of awareness and a lack of understanding” and perhaps this correspondence will help raise awareness of the implications of the MCA to emergency treatment. It is perhaps not immediately apparent what the practical implications are of this change, in most circumstances, to using the MCA instead of common law for clinicians ‘on the ground’ treating patients in emergency settings. One such change seems to be the need for clinicians dealing with emergencies, as much as is possible in the circumstances of the emergency, to stop to consider an individual’s capacity and their best interests in a structured manner and ensure this is adequately documented. We would welcome a discussion about what might constitute “reasonable belief” of incapacity for common emergency scenarios and practical advice on “reasonable steps” (when assessing capacity and best interests) and required levels of documentation to help inform clinicians of necessary changes to their practice.
On a separate matter we also thank Mitchell for pointing out the error in the table of the article which incorrectly states the Mental Health Act requires the presence of a mental disorder “which is of a nature (type) and degree (severity) to warrant compulsory assessment or treatment in hospital” when only nature or degree is required.
Rapid Response:
Re: When and how to treat patients who refuse treatment
We thank Brindle et al and Davies for highlighting that the Mental Capacity Act 2005 (MCA), as detailed in its Code of Practice (1), can be used for emergency treatment where there is insufficient time for a fuller capacity assessment. As they accurately point out, in emergency situations the threshold for concluding a person lacks capacity for the decision in hand is lowered and a ‘reasonable belief’ of incapacity is all that is required; consequently the expected detail of capacity assessments in such situations will be proportional to the severity of the emergency and the resulting time available for assessment. It is also important to note that this proportionality also applies to the time available for considering what treatment (if any) is in the patient’s best interests.
On a technical level the MCA essentially codifies previous common law so in reality these two legal frameworks are less separable than suggested in our article, which attempts to distil this complex (and evolving) area of law, together with the Mental Health Act, into practical advice for non-specialist clinicians. Although, as Davies rightly points out and as the courts have emphasised, statutory law (Acts of Parliament such as the MCA) should indeed be used instead of common law when applicable, there are a number of situations when it is not applicable. Some of these situations are relatively straightforward as the MCA was not designed to cover them, for example patients under the age of 16 or, as mentioned by Brindle et al., when the intervention is for the protection of others (e.g. a the restraint and sedation of a violent patient in the Emergency Department).
However there are also some more complex situations where ‘lacunae’ (i.e. holes or gaps) in statutory law such as the MCA exist, which were unforeseen when the Act was passed and where it becomes necessary to fall back on common law to fill these gaps. One such situation may be where a patient is refusing treatment due to duress (e.g. excessive coercion) from another person such as a spouse or relative. In such situations the second ‘functional’ stage of a capacity assessment is failed (most likely by failing to adequately weigh up information pertaining to the decision), but the first stage is not failed as there is no ‘abnormality of brain or mind’, thus rendering the second stage irrelevant. This means that there would be no grounds to conclude capacity is absent as defined by the MCA. In such a situation, we would strongly recommend that legal advice is sought urgently because it may very well be that an application to court is required. There may be other gaps, not yet identified by the courts, which would require falling back to common law.
Despite these complexities we acknowledge that our article requires correction, particularly with regard to any implication that the MCA is not applicable to emergency situations and that it is the most appropriate legal framework for part 1 of the evolving case scenario; a correction will be published shortly.
A key finding of the recently published House of Lords Select Committee’s post legislative review of the MCA(2) was that “The Act has suffered from a lack of awareness and a lack of understanding” and perhaps this correspondence will help raise awareness of the implications of the MCA to emergency treatment. It is perhaps not immediately apparent what the practical implications are of this change, in most circumstances, to using the MCA instead of common law for clinicians ‘on the ground’ treating patients in emergency settings. One such change seems to be the need for clinicians dealing with emergencies, as much as is possible in the circumstances of the emergency, to stop to consider an individual’s capacity and their best interests in a structured manner and ensure this is adequately documented. We would welcome a discussion about what might constitute “reasonable belief” of incapacity for common emergency scenarios and practical advice on “reasonable steps” (when assessing capacity and best interests) and required levels of documentation to help inform clinicians of necessary changes to their practice.
On a separate matter we also thank Mitchell for pointing out the error in the table of the article which incorrectly states the Mental Health Act requires the presence of a mental disorder “which is of a nature (type) and degree (severity) to warrant compulsory assessment or treatment in hospital” when only nature or degree is required.
References
1. Mental Capacity Act 2005 Code of Practice, The Stationary Office. https://www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/mca-c...
2. House of Lords Select Committee on the Mental Capacity Act 2005 - Report http://www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/1...
Competing interests: No competing interests