Tasty Morsels of EM 091 – #FRCEM Capacity and consent

28 Jul

I’m entering a few months prep for the UK and Ireland exit exam in Emergency Medicine: the FRCEM. I’ll be adding lots of little notes on pearls I’ve learned along the way. A lot of my revision is based around the Handbook of EM as a curriculum guide and review of contemporary, mainly UK guidelines. I also focus on the areas that I’m a bit sketchy on. With that in mind I hope they’re useful.

You can find more things on the FRCEM on this site here.

Assessing capacity is a key skill and core knowledge. For exam purposes we need to have this down pat

In the UK the mental capacity act 2005 is the key legal framework

The BMA have a useful mental capacity toolkit

RCEM have their own excellent document just published in Feb 2017 specifically on capacity in EM. There’s some wonderful case examples that might work well as exam scenarios…

How do you assess capacity in the context of mental capacity act?

  • MCA applies to those aged 16 and over
  • capacity is assumed to be present
  • when capacity is thought not to be present all decisions we make must be in the patients best interest
    • this can be influenced by things like prior wishes stated when the patient did have capacity)
  • patients are free to make unwise decisions and this in itself does not imply the person does not have capacity (there’s definitely room for a joke about the UK and Brexit in here…)
  • The Act contains a two-stage test of capacity:
    • ONE: is there an impairment of, or disturbance in the functioning of, the person’s mind or brain? If so:
    • TWO: is the impairment or disturbance sufficient that the person is unable to make that particular decision?
  • to assess the stage TWO, patient does not have capacity if the patient is unable:
    • understand the relevant information for the decision
    • retain this information
    • use that information as part of the decision making
    • communicate that decision
  • If you fail one part of this then you lack capacity
  • when we assess capacity we assess it for a specific decision at a specific time

How do you restrain someone in this context?

  • restraint
    • can be used but must be proportional and in the minimal way needed
    • for example someone intoxicated with a very minor head injury who refuses to stay for 6 hours observation probably does not have capacity but sedating them and performing an RSI purely to keep them for observation is not proportional to the degree of potential risk

when can you break confidentiality in someone lacking capacity?

  • information sharing
    • when someone has been assessed to lack capacity then it is reasonable to share information with for example close relatives in order to best assess what is in the patient’s best interest
  • note that “next of kin” has not been defined and has no legal status and they have no right to records or information unless prior consent has been given
  • in the mental health act, “nearest relative” is different from next of kin and there are certain statutory responsibilities for the “nearest relative”
  • if the reason they lack capacity is a mental health issue then obviously the mental health act is a more appropriate framework

what role does common law have?

from RCEM 2017 – common law still has a role

  • “Common law powers can be used in areas not covered by MHA or MCA or when there is no opportunity to form a judgement about patient’s mental capacity or mental state in situations where urgent intervention is needed to avert serious consequences. This power is short and lasts only until crisis subsides”
  • Of note <16 are covered by children’s act 1989.
  • those aged 16 and 17 are covered by the MCA but cannot make advanced decisions or appoint a lasting power of attorney (only those 18 or older can do so)

Outline the principles surrounding children and consent

The BMA have a toolkit to help

  • children <16 can have competence but always needs an individual assessment
  • For example:
    • the ability to understand that there is a choice and that choices have consequences
    • the ability to weigh the information and arrive at a decision
    • a willingness to make a choice (including the choice that someone else should make the decision)
    • an understanding of the nature and purpose of the proposed intervention
    • an understanding of the proposed intervention’s risks and side effects
    • an understanding of the alternatives to the proposed intervention, and the risks attached to them
    • freedom from undue pressure.
  • someone less than 16 who is found to be competent is sometimes referred to as Gillick competent, though apparently the preferred term is Fraser (the Lord who created the legal framwork) competent as Mrs GIllick involved in the original case isn’t too happy having her name attached to something she lost…
  • Gillick competence refers to a childs ability to consent
  • the Fraser guidelines refer specifically to a child’s ability to consent to contraceptive advice and sexual health treatment (ref)
  • those over the age of 12 are generally expected to have competence to give or refuse consent to the release of information
  • just because a child is deemed to competent to make one decision does not mean they are competent to make all decisions
  • even if a child is not deemed competent every effort should be made to involve the child in the process (for example if parents are consenting and child is not the child can normally be talked round with time)
  • this DFTB post is great too

How does parental responsibility work?

The BMA has some guidance

  • refers to rights, duties and powers of a parent with regard to their child
  • includes right to consent
  • can apply for access to child’s health records but if child can consent (see above) then the child must consent to this
  • when we think a parental decision is not in the child’s interest we can apply to the courts (this doesn’t usually include emergency treatment where we should generally just get on with it)
  • who has responsibility (there’s some variation in region but this will work for the exam i hope
    • Mum’s automatically have it
    • Dad has it if married to mum at time or after birth of the child
    • Otherwise Dad’s have it if registered on the birth certificate (either at time or later)
    • Divorce does not affect it
    • Certain others can acquire it eg legal guardians and adoptive parents will assume it. A local authority can have parental responsibility when under a care order



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