Mental capacity

Which of the following scenarios would give you MOST CONCERN that the patient

lacked capacity to consent for the given procedure?

a) A 51-year-old understands the risks of delaying the surgery for her aggressive

bowel cancer but still maintains that she does not want an operation that may

cure her

b) For the fourth successive time a 63-year-old agrees to have surgery for a large

incarcerated inguinal hernia, but on arriving in the anaesthetic room panics at the

thought of the anaesthetic and refuses to have the operation

c) A 38-year-old woman who is 16 weeks pregnant with worsening signs and

symptoms of acute appendicitis has the risks and benefits of surgery including the

risks to the foetus explained. She refuses to have surgery as she believes any

medicines, including anaesthetics, may damage her baby

d) An 87-year-old with mild dementia who is conversational and orientated but prone

to being forgetful asks you twice to repeat the risks you have explained to him about

the anaesthetic for his dynamic hip screw surgery

e) A 24-year-old with depression thought to be at high risk of suicide who has

benefited from electroconvulsive therapy (ECT) in the past, refuses ECT against the

recommendations of two senior psychiatrists. Six months earlier, the patient, during

a period when considered by her mental health team to be of sound mind, had

legally signed an advanced directive stating that she did not wish to ever have ECT

again

Answer: e

Explanation

The Mental Health Act (1983 and amended in 2007) and the Mental Capacity Act (2005)

are important pieces of legislation that underpin the legal position regarding consent.

An anaesthetist at Final FRCA level should have some grasp of the main points of these

acts. A patient should be assessed as to whether they have capacity, and, if they do,

they are the only ones who can consent for a planned procedure with only a very few

exceptions. Capacity is based on determining whether the patient understands what a

treatment involves including the risks and benefits, can understand the impact of not

receiving the treatment, can then retain and consider the information and communicate

their decision back to the medical team. If the patient has capacity, they are

allowed to make what doctors might consider to be bad decisions, such as in the

patient with bowel cancer refusing surgery. A pregnant woman has substantial rights to

refuse any treatment even if it may be to the detriment of the foetus. The gentleman

returning to theatre is complicated. He has capacity at the initial consent discussion and

then suffers a panic attack. The question is whether a panic attack, which is a psychiatric

diagnosis in which insight is usually preserved, removes capacity. This is controversial

and right at the border of a possible answer. As this is a ‘single best answer’ question, and

we are looking for the patient that would most concern us, let’s keep looking. The elderly

gentleman for hip surgery may lack capacity, but it would be too early to say from the

information given.Hemay be hearing impaired, he may just need information imparted

in a slow methodical manner or he may need formal assessment of capacity. Finally we

arrive at the last scenario. This is a complex ethical and legal problem. However, the

question asks you whether the patient has capacity, not whether her advanced directive

allows her to decline electroconvulsive therapy (ECT). With severe depression she

almost certainly lacks capacity. Regarding ECT, the amended 2007 Mental Health Act

brought in two new safeguards. These were that if a patient has capacity, they may

refuse treatment with ECT unless in an emergency, and that if a detained patient had

signed a valid advanced directive opposed to ECT, then they cannot be treated with it,

except in anemergency. It is clear that the decision about capacity in this question is fairly

straightforward, but the decision about whether ECT should proceed is not.

Reference

The Mental Health Acts are a fairly stodgy read.Agood summary may be found online

at www.patient.co.uk/doctor/Consent-To-Treatment-(Mental-Capacity-and-Mental-

Health-Legislation).htm (Accessed 30 November 2009)