In England and Wales, determining the patient’s capacity is governed by the Mental Capacity Act (MCA) of 2005. In Scotland, it is the Adults with Incapacity Scotland Act 2000 and in N. Ireland there is no primary law. Here decision making for patients without capacity is governed by ‘best interests’ tests.
MCA DISCUSSION
People over 16 years old are assumed usually to have capacity and some children below 16 years old will also have capacity because of their intellectual maturity. GPs do not discriminate, particularly on grounds of age, in deciding whether someone has capacity; more about this later.
From the MCA:
1.The following principles apply for the purposes of this Act.
2.A person must be assumed to have capacity unless it is established that he lacks capacity.
3.A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
4.A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
5.An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
6.Before the act is done or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Capacity is easy to ascertain; after a bit of practice, it becomes second nature. GPs need to decide the following:
•Does the patient understand what is being said?
•Are they able to communicate their wishes to you clearly?
•Have they weighed up the pros and cons?
•Are they able to retain the information?
If there are difficulties with retention, then involving a friend, loved ones or other practice members (who know the patient) will help to make best decisions. Usually giving more time and written information helps. It is important that, unless in an absolute emergency, people are given every opportunity to understand and communicate their wishes. For example this may require translator services or changes in text size for someone with visual difficulty. Twelve per cent of those over the age of 80 have age-related macular degeneration and 2.5% of the over 50s.* Information about help that people need so that they can communicate and take in information should be highlighted on the patients’ records and passed on to other agencies when needed.
Scenario: Poor vision and warfarin dosing
On receiving an outpatient clinic (OPC) letter from a cardiologist, a GP replied to the specialist to point out that the patient in question had poor vision and would have a lot of difficulty managing warfarin therapy, due to the variability in dosing over the week. In this case, a different anticoagulant with set dosing was preferable.
The Health and Social Care Act 2012 states that disabled people should have access to information they can understand and the communication support they may need. Therefore, ask patients and carers whether there is any help required. Implement this, record and highlight it. Share this information with others, if given permission by the patient.
Scenario: Transient lack of capacity in sepsis
Mr Y is 83 years old, usually self-caring and now unwell, in bed with wet bed sheets due to new onset urinary incontinence. His temperature is 38°C, pulse 100, sinus rhythm (SR) weak volume, blood pressure (BP) 110/70 mmHg. He takes amlodipine 5 mg od, ramipril 5 mg od, and occasionally a salbutamol metered dose inhaler (MDI). His chest is clear, abdomen soft and the GP makes a diagnosis of probable urinary sepsis and suggests hospital management. He refuses, saying, ‘If I am to die, I want it to be here!’
His wife is not so sure he should stay at home.
The practical aspects of his care are that his BP is lower than usual, though he is rested in bed (his last three BP measurements have been around 136/84 mmHg according to his GP notes) and he hasn’t eaten or drunk much for 24 hours. He needs his antihypertensive medication stopped. His pulse and temperature are consistent with sepsis. In addition, he requires blood tests to assess for acute kidney injury as he may have pre-renal failure from dehydration with superadded ramipril-aggravated renal injury. On one hand, Mr Y might die, and being in his own home would be a preferable place for him with his wife in attendance; he is making that clear. But there is nothing in his scenario and pre-illness function to make the GP think that he will not make a good recovery with antibiotics. Antibiotics would preferably be intravenous initially in view of his sepsis. In this case, he needs clear information about his illness and the benefits and harms, including death, if he stays at home versus those if he is admitted. He can then weigh these options and decide whether to go into the hospital (which the GP and wife both feel to be the correct decision). If he has capacity, however, he is entitled to stay at home, if that is his wish. The GP should then manage him with blood tests, antibiotics, stopping antihypertensives and early review. In summary, people can make judgements that others disagree with if they have capacity to do so and this should be respected.
However, in this case Mr Y was agitated. He couldn’t listen for long without interrupting and repeating himself. He couldn’t relate what the benefits of hospital might be, even though they were explained so well that his wife was repeating them to him. He was unable to concentrate long enough to weigh up pros and cons of decisions and appeared unable to retain what was being said.
He therefore did not have capacity at that time. Professional guidance states that doctors should approach this man with the view of prolonging life if it is not clear that to do so would be futile and is not against any ADRT that he has made. The GP told him he was too unwell to decide on this occasion and arranged his admission. He came home pleased to have had treatment, with full recovery and had regained full cognition, reasoning and function.
Scenario: Communication issues
Mr Y had a severe stroke eight years ago and lives in a ground floor flat with regular carer visits. He has an expressive dysphasia, so he understands the spoken word but cannot use words to communicate his wishes reliably. He is able to say ‘yes’ and ‘no’ reliably though. He also has a visual field defect, so to see visitors they must stand to his right.
In order to take a history and test that he understands, his GPs only use questions which have a ‘yes’ or ‘no’ answer. His understanding is normal. When asked to put his right hand on his head, he will do so. When asked to do this with the left hand he tries but cannot, due to paralysis. Asked to say ‘yes’ or ‘no’ to whether he lives in Manchester, Leeds, London – this amused him – he can reply ‘yes’ for Manchester and ‘no’ for the others. Asked if he has a son and then if he has any daughters, he responds appropriately, confirming that he has a son but no daughters. He can therefore communicate and has capacity to understand. To communicate, the questioner should be creative about the type of questions asked. So, a GP would not ask, ‘How long have you felt ill?’ but might ask, ‘Have you been ill more than one day?’, ‘more than one week?’, etc. The question ‘where is the pain?’ is inappropriate but ‘do you have any pain?’ is a reliable question for him. In this way, the history can be narrowed down.
Scenario: Another communication issues
Mr Y communicates only by eye movements. He has no speech at all but can communicate by deviating his eyes up or down reliably to mean ‘yes’ and ‘no’.
Again, the GP should check capacity and ask a history in a way which allows the patient to communicate effectively. These histories take time and patience but are very rewarding.
Having a mental illness does not necessarily mean a patient lacks capacity. Of course, if a patient is psychotic then they may not have capacity, as they may have disordered thoughts. This is especially true in acute psychotic episodes. However, many patients have a diagnosis of psychosis on their records but have become well enough to have capacity, live independently and make informed choices. A GP should therefore be careful to avoid prejudice in deciding capacity based on someone’s past medical history.