Consent to Examination or Treatment Policy

Transcription

1 Policy: C7 Consent to Examination or Treatment Policy Version: C7/08 Ratified by: Trust Management Team Date ratified: 11 March 2015 Title of Author: Title of responsible Director Governance Committee Head of Mental Health Law and Clinical Records (London sites) and MHA Office & Health Records Manager, Broadmoor Hospital Medical Director Date issued: 18 March 2015 Review date: March 2018 Target audience: Disclosure Status: Patient Safety & Safeguarding All staff Trust wide (B) Can be disclosed to patients and the public EIA / Sustainability N/A Other Related Procedure or Documents: West London Mental Health NHS Trust Page 1 of 44

2 Equality & Diversity statement The Trust strives to ensure its policies are accessible, appropriate and inclusive for all. Therefore all relevant policies will be required to undergo an Equality Impact Assessment and will only be approved once this process has been completed Sustainable Development Statement The Trust aims to ensure its policies consider and minimise the sustainable development impacts of its activities. All relevant policies are therefore required to undergo a Sustainable Development Impact Assessment to ensure that the financial, environmental and social implications have been considered. Policies will only be approved once this process has been completed West London Mental Health NHS Trust Page 2 of 44

3 C7 - Consent to Examination or Treatment Version Control Sheet Version Date Title of Author Status Comment C7/01 Oct 2003 Director of Nursing New Policy issued C7/02 July 2007 Director of Nursing Policy revision C7/03 June 2009 Executive Director of High Secure Services & Nursing Policy revised Revised in light of MHA 2007 & MCA C7/04 Sept 2009 Director of Nursing Policy revised Revised in light of new DH Reference Guide on consent C7/05 Nov 2009 Director of Nursing & Patient Experience C7/06 5 th July 2010 Director of Nursing & Patient Experience Policy Revised. Presented to 26 Nov Operations Board. Approved as a working document, Under 8 week consultation ending 5 Feb 10 Revised Policy Issued to Staff Further to comments from Executive Team and Trust s MHA/MCA Implementation Group. Further, minor textual revisions Further to comments made in Feb 10 some minor amendments made. Revised Policy presentation to Policy Review Group 6th May Approved by PRG. C7/07 Sept 11 Director of Nursing & Patient Experience Revised policy for consultation ending Amendments made to: comply with NHSLA standard; include role of IMHA; reflect new governance structure and role of CSUs in monitoring legal compliance: include information on involvement of relatives/carers. Present to 29 th Sept Policy Review Group for approval approved. C7/08 Sept 14 Head of Mental Health Law (London sites) & MHA Office Manager (Broadmoor) Revised policy for consultation ending Minor amendments to reflect new template. Added reference to new form CTO12 and Trust requirement that T2 forms reviewed annually. Removal of reference to PCTs in relation to IMHAs. Changed references to Supervised Community Treatment patients to CTO patients. Trustwide consultation ending Consultation extended to Dec 14 Minor additions: concurrent use of T2 and T3 forms and their review June 2015 Minor amendments to Appendices E & F West London Mental Health NHS Trust Page 3 of 44

4 C7 - CONSENT TO EXAMINATION OR TREATMENT Content Page 1 Flowchart (medication for detained patients) 5 2 Introduction 5 3 Scope (includes purpose) 6 4 Definitions 6 5 Duties Chief Executive Accountable Director Managers Policy Author Local Policy Leads Specific Staff for Policy All Staff 6 Systems and Recording 7 7 Principles of Consent 8 8 Capacity to give Consent 8 9 Treatment of Patients Who Have Capacity to Give Consent 9 10 Treatment of Patients Who Do Not Have Capacity to Give Consent 9 11 (specifically Emergency Treatment Part 4 MHA Without 1983) Consent (section 62 & 64G) Statutory Forms Authorising Treatment under Mental Health Act Community Treatment Order Patients Community Treatment Order Patients on Recall to Hospital Consent for Informal Patients Involving Relatives & Carers The Mental Capacity Act Independent Mental Capacity Advocates (IMCAs Independent Mental Health Advocates (IMHAs) Children and Young People Using the Department of Health Consent Forms ECT summary of rules for adults and children Provision of Interpreters & BSL Signers Training Monitoring Fraud Statement (if required) References Supporting documents Glossary of Terms, Acronyms Appendices Appendix A - 12 key points on consent: the law in England & Wales Appendix B - Current DoH forms in use in West London Mental Health NHS Trust Appendix C - Useful contact details Appendix D - Seeking Consent: Remembering the patient's perspective Practice Guidelines & General Principles Appendix E - Trust Section 62 Form (emergency treatment of detained in-patients) Appendix F - Trust Section 64G Form (emergency treatment of CTO patients) West London Mental Health NHS Trust Page 4 of 44

5 1 Flowchart TREATMENT FOR MENTAL DISORDER (MEDICATION) DETAINED PATIENT Treatment within first 3 months Treatment after first 3 months CTO patient in the community Always seek consent but can treat during this period Consenting, RC completes Form T2 to allow further treatment Capable & Consenting, RC completes form CTO 12 Not consenting/lacks capacity, SOAD form T3 required, use section 62 if delay Not capable or not consenting, SOAD completes form CTO 11 2 Introduction 2.1 Every patient has a fundamental legal and ethical right to determine what happens to their own bodies. Valid consent to treatment is therefore absolutely central in all forms of healthcare, from providing personal care to undertaking major surgery. Seeking consent is also a matter of common courtesy between health professionals and patients. 2.2 Consent to most routine and low-risk procedures such as providing personal care or taking blood pressure will normally not need to be given in writing. 2.3 Consent to treatment for mental health conditions is now governed by the Mental Capacity Act 2005 for voluntary adult patients and Part 4 and 4A of the Mental Health Act 1983 (as amended by the MHA 2007) for detained and Community Treatment Order ( CTO ) patients. 2.4 The MHA deals with the consent to treatment of detained and CTO patients and specifies the circumstances under which treatment without consent may take place. Part 4 of the MHA covers all detained patients except those under the following sections: s.4, s.5(2), s.5(4), s.35, s37(4), s.135, s.136 and s.41 (conditional discharge). In the main, Part 4 also covers CTO patients recalled to hospital. 2.5 Patients on leave of absence are covered by Part 4 of MHA. If a patient is granted leave to another psychiatric hospital, it is the Approved Clinician in charge of West London Mental Health NHS Trust Page 5 of 44

6 treatment from the sending hospital who retains responsibility for completing the form T2 or T The Care Quality Commission monitors the use of the MHA including the use, procedures and practice of consent to treatment. 2.7 Treatment for physical conditions that are directly related to the relevant mental health condition may sometimes be given under the terms of the MHA if the patient is detained, otherwise the Mental Capacity Act will apply. 2.8 Part 4A of the MHA deals with patients on CTOs who have not been recalled to hospital. 3 Scope (including purpose) 3.1 This policy broadly follows the format of the Department of Health s Model Policy for Consent to Examination or Treatment to enable clinical staff to readily access information within different organisations. However, as the model policy primarily applies to acute health services, it has been adapted to more accurately reflect the particular issues that arise in mental health services so includes key information relevant to West London Mental Health NHS Trust. The policy aims to provide staff with basic information on consent to examination and treatment within the revised legislative framework which has largely taken over from the common law doctrine of necessity. Links to more detailed guidance which should be consulted as necessary are given below. 4 Definitions Consent is the voluntary and continuing permission of a patient to be given a particular treatment, based on a sufficient knowledge of the purpose, nature, likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it. Permission given under any unfair or undue pressure is not consent. (MHA: Code of Practice para 23.31) Responsible Clinician ( RC ) is the approved clinician with overall responsibility for a detained patient s case or a CTO patient. Approved Clinician ( AC ) is a person (usually a consultant psychiatrist) approved by the Secretary of State to act as an approved clinician for the purposes of the Mental Health Act. SOAD is a second opinion appointed doctor provided by the Care Quality Commission in relation to authorisation of treatment under the Mental Health Act. 5 Duties 5.1 Chief Executive The Chief Executive is responsible for ensuring that the Trust has policies in place and complies with its legal and regulatory obligations. West London Mental Health NHS Trust Page 6 of 44

7 5.2 Accountable Director The accountable director is responsible for the development of relevant policies and to ensure they comply with relevant standards and criteria where applicable. They are also responsible for trust wide implementation and compliance with the policy. The Trust s Medical Director has responsibility for Consent to Treatment or Examination from November Managers Managers are responsible for ensuring policies are communicated to their teams / staff. They are responsible for ensuring staff attend relevant training and adhere to the policy detail. They are also responsible for ensuring policies applicable to their services are implemented. 5.4 Policy Author Policy Author is responsible for the development or review of a policy as well as ensuring the implementation and monitoring is communicated effectively throughout the Trust via CSU / Directorate leads and that monitoring arrangements are robust. 5.5 Local Policy Leads Local policy leads are responsible for ensuring policies are communicated and implemented within their CSU / Directorate as well as co-ordinating and systematically filing monitoring reports. Areas of poor performance should be raised at the CSU / Directorate SMT meetings. 5.6 Specific Staff for Policy This policy is primarily aimed at clinical staff. For detained patients, this policy sets out some actions which can only be lawfully carried out by a patient s RC. However, all clinicians have responsibilities under this policy. Mental Health Act Office staff in conjunction with senior clinicians and if necessary, seeking formal legal advice, will provide specific guidance on any issues that are not explicitly covered by this policy. 5.7 All Staff All staff must be aware of and adhere to this policy as it impacts on any clinical or advisory responsibility they may have. 6 Systems and recording Where Recorded: Trust Exchange Recorded by (name/title): Kevin Towers/Head of Mental Health Law & Clinical Records West London Mental Health NHS Trust Page 7 of 44

8 7 Principles of consent 7.1 Every person aged 16 or over is presumed to have capacity to decide whether or not he will accept medical treatment, even if refusal may risk permanent injury to his health, or even lead to premature death. However, if there is genuine reason to doubt the person s capacity in relation to a treatment matter, a test of capacity must be carried out. 7.2 All patients and service users regardless of their legal status should be asked to consent to any proposed treatment, but there are specific requirements for formally detained patients, CTO patients and for those without the capacity to consent. 7.3 The patient must be informed that his/her consent can be withdrawn at any time either in writing or verbally, and of the likely consequences of doing so. If consent is withdrawn the fact and circumstances must be documented in the patient s clinical record. In these circumstances, if the patient is detained, the patient s Approved Clinician (AC) in charge of treatment must consider whether to proceed in the absence of consent (s58 MHA), to offer alternative treatment, or to discontinue treatment. This decision must also be documented. In the case of a CTO patient who has capacity to consent, treatment cannot be given if the patient refuses this. 8 Capacity to give consent 8.1 A person aged 16 or over is presumed to have the capacity to make a treatment decision and to give his/her consent to the proposed treatment unless he/she: is unable to understand information relevant to the decision in question (which might include being unable to believe e.g. while suffering from psychotic delusions) or is unable to retain that information for long enough to make a decision or is unable to use or weigh that information to arrive at a decision or Is unable to communicate his/her decision. 8.2 Capacity is demonstrated if an individual is able to: Understand in language appropriate to them, what the proposed treatment is, its purpose and nature and why it is being proposed. Understand its principle benefits, risks and alternatives. Understand in broad terms the consequences of not receiving the proposed treatment. Retain the information for long enough to make an effective decision. Make a choice that is free from undue or unfair pressure. Communicate their decision 8.3 Assessments of an individual s capacity must be made in relation to a particular treatment or proposal if there is genuine reason to query capacity or when undertaking formal processes such as documenting consent under Part 4 of the MHA. More serious decisions will require a higher level of capacity. West London Mental Health NHS Trust Page 8 of 44

9 8.4 Capacity in an individual may vary over time and should be assessed at the time of the treatment proposal. If the patient s capacity to consent is judged to have changed since his/her original consent a revision of his/her capacity should be undertaken. 8.5 All assessments of an individual s capacity to consent and subsequent changes in his/her capacity must be fully documented in the patient s clinical record. 9 Treatment of patients who have the capacity to give consent 9.1 It is the duty of everyone proposing to give treatment to use reasonable care and skill, not only in giving information prior to seeking the patient's consent but in meeting the continuing obligation to provide the patient with adequate information about alternative treatments. 9.2 The information that is given to the patient must relate to the particular treatment. It should be given in broad terms to ensure that the patient understands the nature of the treatment including any likely effects and associated risks. The Trust has a wide range of medication information leaflets on the Trust Intranet (The Exchange), some in different languages. 9.3 The patient must be informed that he/she can withdraw their consent to treatment at any time and by any means. 9.4 If a patient is detained under the MHA, compulsory treatment for mental disorder can be given in circumstances when consent is withheld. 9.5 If a patient is detained under the MHA, their consent is not required for: the administration of medication for mental disorder during the first three months of treatment during current detention period. The AC in charge of treatment must however seek the patient s consent before medication is given (CoP 23.37) the period after 3 months where the administration of the medication has been certified by an independent doctor (Second Opinion Appointed Doctor). Treatment for mental disorder (which is not medication or ECT) given by or under the direction of the Approved Clinician (s.63 MHA). 10 Treatment of patients who do not have the capacity to give consent (specifically, part 4 MHA 1983) 10.1 Treatment of patients who do not have the capacity to give consent to their own treatment may in certain circumstances be prescribed for them in their best interests under the Mental Capacity Act These circumstances may vary according to the patient s age and/or the reason for their lack of capacity to give consent. Guidance in this matter should be sought from Part 4 and 4A of the MHA 1983 and chapters 23 and 24 of the MHA Code of Practice. West London Mental Health NHS Trust Page 9 of 44

10 10.2 Treatment without consent should usually be confined to one or more of the following circumstances: During the first three months of a formal admission. With the agreement of a Second Opinion Appointed Doctor (SOAD). Under the emergency treatment provisions of the Act (see next section) 11 Emergency treatment without consent (section 62 & 64g) 11.1 Urgent or emergency treatment without the consent of a detained or a recalled CTO patient is covered by Section 62 of the MHA or in certain circumstances by the Mental Capacity Act. It is authorized by the patient s AC in charge of treatment Emergency treatment may only be prescribed or administered where treatment is immediately necessary to save life, to prevent a serious deterioration of the patient s condition, to alleviate serious suffering or to prevent the patient being a danger to him/herself or others Emergency treatment should, where possible, follow existing treatment and/or medication regimes. It must be discontinued when it is no longer immediately necessary (CoP 24.35) 11.4 The Trust has issued a revised Section 62 form (Appendix E) and a Section 64(G) form for recording emergency treatment for SCT patients (Appendix F). The use of s62 and s64(g) is monitored quarterly by each Clinical Service Unit The use of s62 or s64g will be appropriate where treatment needs to be given or continued in the absence of a SOAD, particularly where there is a delay in the provision of a SOAD. However, in relation to ECT, great care must be taken to comply with the amended rules summarized at chapter 16 below. Section 64G will only apply if a patient has not yet reached the threshold for recall to hospital. 12 Statutory forms authorising treatment under mental health act 12.1 Form T2 is completed when a detained patient has the capacity to consent to treatment (medication) and has done so. Responsibility for completion of Form T2 lies with the patient s AC in charge of treatment, usually their RC A Form T2 becomes invalid in any of the following circumstances: If the patient loses his/her capacity to consent to treatment. If the patient withdraws his/her consent to any or all of the agreed treatment. If there is a break in detention 12.3 A Form T2 should be renewed at regular intervals. A new form must be completed when the AC in charge of treatment changes permanently. It is a Trust requirement that the RC review and provide a new form T2 annually even if there has been no change in treatment. This is to ensure that consent is considered as frequently as the statutory review process for second opinions. West London Mental Health NHS Trust Page 10 of 44

11 12.4 When Form T2 or T4 (for ECT) is completed a full and comprehensive entry should be made in the patient s notes. This should include a statement on the patient s capacity to consent, and details of the discussion with the patient about the proposed treatment Form T3 is completed when a detained patient either withholds or is incapable of giving his/her consent to medication. Form T3 is completed by a Second Opinion Appointed Doctor (SOAD) who will need to interview the patient and examine his/her treatment plan. There are different forms for the SOAD to use for ECT (T5 and T6). ECT cannot be given to a patient who has mental capacity and refuses it unless it is given as emergency treatment. The SOAD must also complete a CQC 2 form giving reasons for authorising treatment or include them on form T3 itself. The patient s AC in charge of treatment will inform the patient of the reasons given by the SOAD and must document this Before providing authority for treatment, the SOAD is required to discuss the proposed treatment plan with two other professionals known as statutory consultees (CoP ). The consultees must make a record of their discussion in the health record. In some parts of the Trust, there is a form in use for this purpose which can be found on the MHA/MCA page of the Exchange Any changes to the treatment plan authorised by and detailed on the Form T3, T5 or T6 will require a new second opinion A SOAD cannot authorise a change to the form verbally or over the telephone. The form cannot be amended once the medication has started. If, having received the new form, an error is immediately noted, the SOAD can be asked to rectify the error if he/she is still on site. Any change should be initialled and dated. If the SOAD has left the site or posted the form to the hospital, amendments or a new replacement form should be requested via the CQC (SOAD administration service) A copy of the current treatment authorisation form must be kept with the patient s prescription chart to enable staff to ensure that all medication is covered by the form If a patient who lacks the capacity to give his/her consent to treatment, and is therefore subject to a Form T3 or T6, regains their capacity to consent, this form is no longer valid and a new form must be completed All consent to treatment forms that are invalid or have been superseded must be crossed through diagonally and appropriately annotated In some circumstances, a concurrent T2 and T3 form may exist for the same patient where consent is given to some but not all treatments T3 forms must be reviewed periodically by completing form CQC 1 (formerly called MHAC 1) this usually coincides with annual renewal of detention or annual statutory report for restricted patients. West London Mental Health NHS Trust Page 11 of 44

12 13. Community treatment order patients (part 4a) 13.1 The treatment of CTO patients who have not been recalled to hospital, including patients who are in hospital on a voluntary basis not having been recalled, is dealt with under Part 4A of the Act. The Code refers to them for convenience as Part 4A patients and provides detailed guidance on their treatment in chapters 23 and There are different rules for Part 4A patients who have capacity to consent to specified treatments and those that do not. Anyone that has capacity can only be given treatment in the community that they consent to. Even in an emergency, they can only be treated by recalling them to hospital. However, recall will not be appropriate unless the patient meets the recall criteria (see SCT Policy S4, para 7.3) The Part 4A rules recognise and incorporate aspects of the Mental Capacity Act 2005 ( MCA ) including advance decisions and persons appointed to make surrogate decisions such as an attorney under a lasting power of attorney (personal welfare) or a court appointed deputy. It should be noted that the MCA may not generally be used to give CTO patients any treatment for mental disorder other than where an attorney, deputy or Court of Protection order provides consent. It may still be appropriate to rely on the MCA for the provision of treatments for physical problems for a CTO patient The MCA does not normally apply to a child under the age of sixteen, so decisions about capacity in relation to medical treatment are made by determining whether a child is Gillick competent in accordance with a landmark ruling of the House of Lords 1. This is sometimes referred to as Fraser competency acknowledging the Law Lord who set out the principles to be applied in determining such competency Part 4A patients over the age of sixteen who lack capacity may be given specified treatments on the authority of an attorney or court appointed deputy or by order of the Court of Protection. If over sixteen, treatment cannot be given where an attorney or deputy refuses on the patient s behalf. If the patient is over eighteen, treatment cannot be authorised if it would contravene a valid and applicable advance decision made under MCA If physical force needs to be used to administer treatment to a patient of any age who lacks capacity or competence, it can only be given in an emergency following the conditions set out in section 64G which reflect the similar scheme in the MCA 3. The alternative mechanism is via recall to hospital but the recall criteria set out at 7.3 above apply equally to patients lacking capacity. The use of physical force will be exceptional and only used when: the treatment is necessary to prevent harm to the patient and the force used is proportionate to the likelihood of the patient suffering harm and to the seriousness of that harm. Any use of force must be clearly documented in the patient s notes and the reasons given. 1 Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL) 2 See Chapter 17 of The Code 3 See conditions set out in section 6 Mental Capacity Act 2005 West London Mental Health NHS Trust Page 12 of 44

13 13.7 In an emergency, treatment for Part 4A patients who have not been recalled can be given by anyone (it need not be an Approved Clinician or the RC) but only if the treatment is immediately necessary to: Save the patient s life Prevent a serious deterioration of the patient s condition, and the treatment does not have unfavourable physical or psychological consequences which cannot be reversed; alleviate serious suffering by the patient and the treatment does not have unfavourable physical or psychological consequences which cannot be reversed and does not entail significant physical hazard; or prevent the patient behaving violently or being a danger to themselves or others, and the treatment represents the minimum interference necessary for that purpose, does not have unfavourable physical or psychological consequences which cannot be reversed and does not entail significant physical hazard. For ECT (or medication administered as part of ECT), only the first two categories apply In an emergency where treatment is immediately necessary as above, it may be given even if it goes against an advance decision or a decision made by a person authorised on the patient s behalf under the MCA. 4 These are the only exceptional circumstances in which force can be used to treat an objecting SCT patient without first recalling them to hospital In non-emergency situations (excluding ECT for which reference should be made to paragraphs of the Code and the Trust s ECT policy) a patient may lack capacity and object to treatment but where physical force is not required he or she can be treated with medication for mental disorder in the community during the first month following discharge on a CTO After the first month, EITHER the patient s RC must certify that the patient has capacity to consent and has consented by completing form CTO12 OR a SOAD must certify that such treatment is appropriate on a Part 4A certificate (form CTO11). The SOAD certifies the appropriateness of treatment and any conditions attached to it 5 not whether a patient has or lacks capacity or is refusing The SOAD will consider what (if any) treatments to approve in the event that the patient is recalled to hospital and to specify any conditions that will apply Form CTO11 or 12 should be kept with the original CTO and detention papers but a copy must be kept in the clinical records which might include a scanned copy where the primary record is electronic The arrangements surrounding the SOAD s examination will be complicated by the fact that the patient is in the community so an appropriate person should be asked to confirm arrangements with the SOAD and coordinate the process. This may be the care coordinator Other than in exceptional circumstances, SOAD examinations will be arranged in a hospital or clinical setting. If the RC agrees that it is necessary to visit a CTO patient 4 The Code, paras The Code, para West London Mental Health NHS Trust Page 13 of 44

14 in a hostel or home, the SOAD will always be accompanied by an appropriate member of the care team If there is a delay in an assessment by a SOAD, section 62 or 64G (see para 11.5 above) must be used if there is no other lawful authority for continuation of treatment. 14. Community Treatment Order Patients on Recall to Hospital 14.1 When a patient on a CTO is recalled, he/she will become subject to the provisions of those sections of the Act governing treatment for detained patients (Part 4). If treatment does not include psychotropic medication or ECT and a patient with capacity consents to it, it may be given under the direction of the RC If a SOAD has approved any treatment on form CTO11 in the event of the patient s recall to hospital, such treatment may be given as approved subject to any conditions that may have been specified. Unless the SOAD has indicated otherwise, the certificate will authorise treatment (other than ECT) whether the patient has or does not have capacity to refuse it On recall, treatment that was already being given as described on Form CTO11 may continue to be given if the AC in charge of the treatment considers that stopping it would cause the patient serious suffering but steps must be taken at the earliest opportunity to obtain a new certificate to authorise treatment. This can include previously authorised ECT treatment It is not good practice on recall to rely on a certificate that was issued while a patient was detained prior to going onto a CTO even if it remains valid (CoP 24.81) 15. Consent for informal patients 15.1 Informal patients are required to give their consent to any proposed treatment before that treatment commences. The guidelines set out in section 7 of this document must be observed when gaining the consent of informal patients The consent to treatment of informal patients for any serious medical treatment must be recorded on appropriate West London Mental Health Trust and Department of Health approved forms (Appendix B) or on local forms within the hospital providing treatment Completed consent forms for informal patients will be filed in the health record or uploaded onto the patient s RiO record Consent to treatment forms for informal patients must be renewed at regular intervals. A new one must be completed if there is a change in the treatment plan or a change in the Consultant Psychiatrist or treating clinician. West London Mental Health NHS Trust Page 14 of 44

15 16. Involving relatives and carers 16.1 One of the guiding principles in the Code of Practice is the Participation principle. The Code states that patients must be given the opportunity to be involved, as for as practicable in the circumstances, in planning, developing and reviewing their own treatment and care. The Code also states that the involvement of carers, family members and other people who have an interest in the patients welfare should be encouraged (unless there are particular reasons to the contrary) and their views taken seriously A patient s relatives and friends should only exceptionally be used as intermediaries or interpreters (CoP 2.5). However this does not mean that a relative or carer should not be involved in, or notified of, decisions related to the patient s care and treatment If a patient has capacity he/she must give their consent to information being shared with a relative or carer (CoP 2.34). Unless there are reasons to the contrary, patients should be encouraged to agree to their carers being involved in discussions under the Act and to them being kept informed. If a patient s request is not granted, the reasons for this decision will be recorded in the patient s clinical notes The Code reminds professionals that even if carers cannot be given detailed information about the patient s case, where appropriate, they should be offered general information which may help them understand the nature of the mental disorder, the way it is treated, and the operation of the Act (CoP 2.42) 16.5 If a relative or carer has concerns about a patient s mental capacity to consent to treatment, this should be raised with the professional who carried out the mental capacity assessment. This is particularly relevant to patients in the community when relatives or carers may become aware of a change in the patient s behaviour or mental health (Mental Capacity Act Code of Practice 4.35) 17. The mental capacity act 2005 (MCA) 17.1 The MCA came into force in It enshrines in statute former best practice and common law principles concerning adults who lack mental capacity and those who take decisions on their behalf. Broadly, the Act does not apply to children under The Act provides a statutory framework for the care and treatment of people who may not be able to make their own decisions, whether on a permanent or temporary basis. Decisions on healthcare come within the scope of the Act The Act is underpinned by five key principles: A presumption of capacity The right of individuals to be supported to make their own decisions The right to make eccentric or unwise decisions Acts done on behalf of people without capacity must be done in their best interests Acts done on behalf of people without capacity should be the least restrictive of their rights and freedoms West London Mental Health NHS Trust Page 15 of 44

16 17.4 Guidance on the MCA is provided via its Code of Practice and Trust Policy M9. With regard to the assessment of capacity of adult patients/clients and any subsequent treatment, professionals should adhere to the principles (above) and the Trust Policy When applying a best interests test, the professional must encourage the patient/client to participate in the decision, should have regard for his/her past and present wishes and any beliefs and values and should consult with others e.g carers, family members, attorneys, or advocates. There may be good reason not to consult with a relative or carer (e.g. if there has been reported abuse). This decision should be documented in the patient s notes It is vital that the health professionals should make reasonable enquiries concerning any recorded wishes, an advance decision (which may have been made verbally if concerning less serious matters) or a Lasting Power of Attorney made by the patient/client. An advance decision does not override Part 4 of the MHA 1983 unless the treatment proposed is ECT but will always be given due consideration. The question of advance decisions, power of attorney or the appointment of a court deputy is relevant for SCT patients. The Trust has a patient leaflet on Advance Decisions and Advance Statements (the former is a refusal of treatment and is based in statute, the latter is a statement of the patient s wishes and is a matter of good clinical practice and not lawfully binding) Assessment of capacity, consultations and the decision-making process should be clearly recorded. In serious cases, if disputes arise concerning the capacity of the patient, the case may be referred to the Court of Protection. The Consultant will discuss the case with the appropriate Clinical Lead/Clinical Director before advice is sought from the Trust s legal advisors The DH has produced a set of 4 consent forms. Form 4 is to be used for adult patients lacking capacity (for physical treatments). 18. Independent mental capacity advocates (IMCAS) 18.1 If serious medical treatment (not being a treatment under Part 4 of the MHA) is proposed for anyone deemed to lack capacity who does not have a suitable person to represent them, an Independent Mental Capacity Advocate (IMCA) must be appointed. The IMCA will represent the interests of the patient. He/she will provide a report outlining whether in all the circumstances, it appears to be in the best interests of the patient to carry out the proposed treatment. In genuine emergencies, it may not be possible to wait for this process to be carried out before treatment is provided. Contact details and referral forms are available on the Trust s intranet MCA page or from any Mental Health Act Office IMCAs have other roles under the Mental Capacity Act which are outside the scope of this policy so reference should be made to MCA Policy. West London Mental Health NHS Trust Page 16 of 44

17 19. Independent mental health advocates (IMHAS) 19.1 This statutory role was introduced by the MHA 2007 and came into effect in April The IMHA service is independent of the Trust and is commissioned by the Clinical Commissioning Group. It is a service available to patients detained under the Act or SCT patients. More than this, it is an entitlement and must be actively promoted by the Trust. The IMHAs will give patients information and help patients to understand the legislation, including the complex statutory provisions of Part 4 of the MHA governing consent to examination and treatment. Clinical team members on every ward and unit must give detained patients information about the local IMHA service and help patients to make contact with this service if requested to do so. Staff can also refer patients to the IMHA service. 20. Children and young people 20.1 Advice should be sought if in doubt on matters relating to consent to treatment but the law now asserts that a young person aged 16 or 17 must be presumed to have capacity to decide to accept or refuse treatment in their own right. If in doubt a capacity test should be carried out in relation to the proposed treatment. Any decision to override lack of consent in relation to treatment for mental disorder will require assessment under the Mental Health Act. Lack of capacity may be overcome either through the Mental Health Act or if no harm of risk to others, through the Mental Capacity Act Children under the age of 16 may have competency to decide, depending on their ability to understand what is involved (the Gillick test). If a competent child under 16 refuses treatment, a person with parental responsibility or a Court may authorise investigation or treatment which is in the child s best interests. 21. Using the DH consent forms 21.1 Within the Trust, these forms will mainly be used when ECT is given under anaesthetic. They may also be used when minor surgery is required or when informal patients are prescribed medication which may carry significant side effects. They do not replace the need for the MHA statutory consent forms and need not normally be used for lower-level interventions such as taking blood samples as an adjunct to prescribed treatment for mental disorder. 22. ECT summary of rules for adults & children 22.1 ECT may NOT be given: to ANY patient who has capacity to consent but refuses even in an emergency 6 6 Although it is theoretically possible to use s62 emergency powers to provide ECT to an adult, detained patient who has capacity and refuses, it is highly contentious and advice should be sought through Trust West London Mental Health NHS Trust Page 17 of 44

18 to any patient under the age of 18 without a SOAD certificate whether detained or not as part of any treatment during the first 3 months of detention where a certificate of consent/second opinion is not required to anyone who has made a valid and applicable advance decision refusing ECT under the Mental Capacity Act If an attorney or deputy authorized to make treatment decisions objects If such treatment would conflict with a decision of the Court of Protection 22.2 However, subject to the scheme above, in any emergency case where a person lacks capacity, ECT may be given if it is immediately necessary to either save the patient s life or prevent a serious deterioration of the patient s condition, and the treatment does not have unfavorable physical or psychological consequences which cannot be reversed. Reference should be made to the Trust s ECT policy E Provision of interpreters & BSL signers 23.1 WLMHT is fully committed to the use of independent, professional interpreters and signers in relation to important matters including discussion about care or treatment. Translation into different languages or Braille is carried out as necessary if materials are not already available in relation to proposed treatments. Advice can be sought from the MHA Offices. 24. Advice and training 24.1 Trust staff will always have access to advice through line managers in the first instance and are positively encouraged to raise any treatment issues where there is doubt about the legitimacy of a proposed course of action. Serious matters can be readily escalated through clinical leads/clinical directors or other routes suggested in appendix C The Trust actively provides training on consent, capacity and the administration of medication and ECT. Clinical staff and other staff with patient contact are required to attend the Trust mandatory Mental Health Law Refresher training either face to face or via e-learning. The requirements of the MHA are also part of the training course on Medication: Practice and Procedure. The Trust will make use of other training forums provided by healthcare, professional and legal organisations. 25. Monitoring and review 25.1 The Trust requires all wards/units to undertake as a minimum a quarterly audit on current consent to treatment forms (T2, T3, T4, T5, T6, s.62) and the proper recording of statutory information required under Parts 4 and 4A. Annual Trust-wide audits are also undertaken Use of the statutory provisions of the MHA (Part 4 and Part 4A) will be monitored by each Clinical Service Unit through its clinical governance forum and Trust-wide. contacts listed in appendix C below or via the duty consultant out of hours. See Jones (2010) pp The same applies to any incapacitated person falling within bullet points 4-6 above. West London Mental Health NHS Trust Page 18 of 44

19 Any prevailing issues will be reviewed by the Trust s Clinical Effectiveness & Compliance Committee, reporting in turn to the Quality Committee, a sub-committee of the Board. In particular, issues relating to consent to examination and treatment raised by visiting CQC Commissioners will help to inform each CSU s action plan against which auditing activity will be planned. 26. Fraud statement Not required 27. References The following reference sources more detailed guidance to both law and practice: Mental Health Act 1983 (as amended by the MHA 2007). TSO. Mental Capacity Act 2005, TSO Mental Capacity Act 2005 Code of Practice, 2007, TSO Mental Health Act 1983 Code of Practice, 4th Edition, 2008, TSO. DoH, Reference Guide to Consent for Examination or Treatment second edition, Supporting documents Jones R, Mental Health Act Manual, 16 th Edition 2013, Sweet & Maxwell, London. WLMHT Policy on Electro-convulsive Therapy (ECT), E1 WLMHT Policy on Medicines, M2 WLMHT Policy on the Mental Capacity Act, M9 WLMHT Supervised Community Treatment Policy, S24 WLMHT Policy on use of Photograph Equipment, P8 WLMHT Policy on Informing Patients of their Rights under Section 132, I9 29. Glossary of terms/acronyms MHA CTO RC AC SOAD CSU SMT SCT ECT IMHA CQC Mental Health Act Community Treatment Order Responsible Clinician Accountable Clinician Second Opinion Appointed Doctor Clinical Service unit Senior Management Team Supervised Community Treatment Electroconvulsive Therapy Independent Mental Health Advocates Care Quality Commission West London Mental Health NHS Trust Page 19 of 44

20 Appendix A 1 key points on consent: the law in England & Wales (from the DH Model Policy for Consent to Examination or Treatment, 2001) When do health professionals need consent from patients? 1. Before you examine, treat or care for competent adult patients you must obtain their consent. 2. Adults are always assumed to be competent unless demonstrated otherwise. If you have doubts about their competence, the question to ask is: can this patient understand and weigh up the information needed to make this decision? Unexpected decisions do not prove the patient is incompetent, but may indicate a need for further information or explanation. 3. Patients may be competent to make some health care decisions, even if they are not competent to make others. 4. Giving and obtaining consent is usually a process, not a one-off event. Patients can change their minds and withdraw consent at any time. If there is any doubt, you should always check that the patient still consents to your caring for or treating them. Can children give consent for themselves? 5. Before examining, treating or caring for a child, you must also seek consent. Young people aged 16 and 17 are presumed to have the competence to give or refuse consent for themselves. Younger children who understand fully what is involved in the proposed procedure can also give consent (although their parents will ideally be involved). For children under 16, some-one with parental responsibility must give consent on the child s behalf, unless they cannot be reached in an emergency. If a competent child consents to treatment, a parent cannot over-ride that consent. Legally, a parent can consent if a competent child refuses, but it is likely that taking such a serious step will be rare. Who is the right person to seek consent? 6. It is always best for the person actually treating the patient to seek the patient s consent. However, you may seek consent on behalf of colleagues if you are capable of performing the procedure in question, or if you have been specially trained to seek consent for that procedure. What information should be provided? 7. Patients need sufficient information before they can decide whether to give their consent: for example information about the benefits and risks of the proposed treatment, and alternative treatments. If the patient is not offered as much information as they reasonably need to make their decision, and in a form they can understand, their consent may not be valid. 8. Consent must be given voluntarily: not under any form of duress or undue influence from health professionals, family or friends. Page 1 of 2 West London Mental Health NHS Trust Page 20 of 44

21 Does it matter how the patient gives consent? 9. No: consent can be written, oral or non-verbal. A signature on a consent form does not itself prove the consent is valid the point of the form is to record the patient s decision, and also increasingly the discussions that have taken place. Your Trust or organisation may have a policy setting out when you need to obtain written consent. Refusal of treatment 10. Competent adult patients are entitled to refuse treatment, even when it would clearly benefit their health. The only exception to this rule is where the treatment is for a mental disorder and the patient is detained under the Mental Health Act A competent pregnant woman may refuse any treatment, even if this would be detrimental to the fetus. Adults who are not competent to give consent 11. A person appointed as an attorney (health and welfare) or a court appointed deputy can give consent on behalf of an incompetent adult. If these appointments have not been made you may treat the patient if the treatment would be in their best interests (subject to meeting the conditions in section 5 of the MCA 2005). Best interests go wider than best medical interests, to include factors such as the wishes and beliefs of the patient when competent, their current wishes, their general well-being and their spiritual and religious welfare. People close to the patient may be able to give you information on some of these factors. Where the patient has never been competent, relatives, carers and friends may be best placed to advise on the patient s needs and preferences. 12. If an incompetent patient has clearly indicated in the past, while competent, that they would refuse treatment in certain circumstances (an advance decision), and those circumstances arise, you must abide by that refusal. This summary cannot cover all situations. For more detail, consult the sources of legal guidance listed at 1.9 above Page 2 of 2 West London Mental Health NHS Trust Page 21 of 44

22 Appendix B Current forms in use by the West London Mental Health NHS Trust Mental Health Act Forms T1, T2, T3, T4, T5, T6 not reproduced here but available from MHA Offices cover all statutory requirements for detained patients being treated for mental disorder as well as ECT for Informal patients under age of 18. Forms at appendix E & F below cover emergency provisions under s62 for detained patients and s64g for supervised community treatment patients. consent form 1 consent form 2 consent form 3 consent form 4 Patient agreement to investigation or treatment Parental agreement to investigation or treatment for a child or young person Patient/parental agreement to investigations or treatment (procedures where consciousness not impaired) Form for adults who are unable to consent to investigation or treatment These forms are reproduced here for information. Pre-printed (and, where appropriate), selfcarbonated forms are provided by the Trust for clinicians' use. Note: these consent forms may be further revised in light of changing legislation, particularly the Mental Capacity Act 2005 and amended Mental Health Act They are not entirely accurate and may need to be slightly adapted on occasion. West London Mental Health NHS Trust Page 22 of 44