Consent to treatment: mental health and the law - a guide for mental health practitioners

Alzheimer Scotland's response to the Mental Welfare Commission good practice guide submitted 12 May 2006

Introduction
Alzheimer Scotland is the leading specialist dementia charity in Scotland and works passionately to improve the lives of everyone affected by dementia.

• We run services in over sixty sites, providing practical help such as day home and drop-in centres, home support and carer support.
• We provide an extensive website and our freephone 24-hour Dementia Helpline (0808 808 3000) offers information and support and receives over 5000 call a year.
• We publish leaflets, booklets, reports and a quarterly magazine keeping carers, people with dementia and professionals up to date.
• We lobby the Scottish Parliament and Westminster. Major achievements have been free personal care and the Adults with Incapacity (Scotland) Act.

Alzheimer Scotland welcomes the opportunity to comment on this guide for mental health practitioners on consent to treatment. Members of Alzheimer Scotland’s Rights and Legal Protection Committee were consulted on this guide and their comments are incorporated into this response. Our comments relate primarily to dementia, as this is our area of expertise.

General comments
This is a very useful and well-laid out document and the Mental Welfare Commission should be congratulated on the work involved. However, a general comment on the relationship between mental disorders and impaired capacity would be helpful. There are still some practitioners who link impaired capacity only to intellectual impairments, either lifelong or acquired. Delusions and abnormal affective states may interfere with the process of decision making in a variety of ways. Patients with disorders of the ‘frontal lobe’ executive function of the brain may also have impaired capacity, even in the absence of intellectual impairment.

Specific comments on when and how the transition between the two Acts (Adults with Incapacity Act and Mental Health Act) should be managed would be helpful. In addition, the references need to be checked, as they are out of order and the sixth reference does not refer to capacity.

Specific comments

Page 5

• Paragraph 1, 3rd sentence: “construed” is wrong in this context. Consider an alternative, such as “…lay the practitioner open to allegations of…”.
• Paragraph 2: This says that invasive procedures “need written consent”. This is not the case but as a matter of good practice doctors will require the consent to be evidenced in writing.

Page 6

• Paragraph beginning “information must”, first bullet point: not all patients are knowledgeable about neurology and neurochemistry, and want rather to know how the treatment will affect them in their feeling and thinking. Information should relate to the patient’s understanding of bodily and mental processes – it should be meaningful to him/her. Some comment on the ‘environment’ of consent may be appropriate – a relaxed, comfortable environment is more likely to encourage valid decision-making.

Page 7

• Paragraph 2: Amend second sentence to “control some of your movements or make you feel physically restless”.
• Paragraph 3: Amend first sentence to “cause the patient significant harm”. Fourth sentence: remove “it” after “this”.

Page 9

• Paragraph 1: are there more general textbook references for the definitions of capacity?
• Paragraph 5: the clause “retaining the memory of (or is it “for”) decisions” is debatable or ambiguous. Many patients, and not only those with intellectual impairments, may forget that they have consented or refused treatment, but they may still make consistent decisions.

Page 10

• Second bullet point: change “principle” to “principal”
• Fourth bullet point: it interesting that this gives yet another slant to the ‘memory of decisions’ – having sufficient memory to go through a rational process of decision making.
• Paragraph 3: the first sentence ending in “as a status” is not comprehensible - what is meant? Second sentence: change “may have” to “could have”.
• Paragraph 4, first sentence: change to “The impact of emotions on decision-making may also…”. Fourth sentence: change to “…reasons for making an emotionally-based decision…”.

Page 12

• “What is a valid refusal” section: clarify if the reference is to the Scottish or English Law Commission.

Page 13

• Paragraph beginning “In situations where…”: the practitioner should also ensure that information has been given that is appropriate to the patient’s level and style of understanding, but without any feeling of coercion.
• Section on coercion: a general comment may helpful, that few decisions of any significance to a person will ever be made without some feeling of pressure. Whilst the practitioner is quite rightly warned about the balance of power in his or her relationship with the patient, it is also important to recognise that the practitioner may be in possession of greater knowledge about some aspects of the treatment, and have experience from other patients and other circumstances which justify a degree of persuasion. It is of course a matter of sensitive judgement when persuasion slips into coercion. The pressures exerted by relatives, friends, advisors, and even in some cases by advocates, can also be coercive. The practitioner cannot protect the patient completely from these pressures, but must be take account of them in his/her interaction with the patient. Some comment is also needed on the ‘facile’ or over-willing patient. Patients with brain damage affecting the executive functions of the brain may be excessively compliant or uncharacteristically careless in their approach to consent. The same may apply to patients with elevated mood states. Deluded patients may have abnormal positive views of treatment, or see treatment as a justifiable punishment.

Page 15

• “Treating a person who lacks capacity to consent” section: in section a), the third bullet point is not actually what the Act states, it is that “force or detention would have to be used to overcome any resistance or objections”. Specific comment is needed on the patient in the community (e.g. in a care home) who refuses treatment considered necessary, both where the treatment is for physical disorder and where it is for mental disorder (so potentially coming within the ambit of the 2003 Act).
• Paragraph beginning “treatment should be given’: the second sentence is not comprehensible.

Page 16

• Table x: is the term “best interests” used in the Act? The Neurosurgery/ Regains capacity box is not comprehensible – the patient could not regain capacity unless it had been absent – what is meant by this?

Page 18

• Section c): it may be that an Adults with Incapacity Act order would be appropriate in the example given.

Page 22

• “Opt-in decisions” section: add that “a doctor must not prescribe any treatment which he/she believes ineffective or inappropriate”.

Page 25

• Paragraph 1, second sentence: “unacceptable” is too weak. Suggest “unlawful”, or “tantamount to assault”. Third sentence: “used commonly” does not mean it is good practice. It is often very bad practice. Fourth sentence: “best interest” is not the appropriate test. It is “an assessment of the balance of benefits and risks”. Sixth sentence: change “breech” to “breach”.
• Paragraph 2: at the least practitioners should be expected to consult with all who have an interest, actively consider alternatives, review both the assessment of capacity and communication, including consideration of partial information to the patient, inform all concerned, consider a report to the MWC and/or the relevant monitoring body, record fully the decision-making process and how the administration proceeds, and review on a regular basis. None of this requires further consultation.

Conclusions
In conclusion, we hope this response to the guide for mental health practitioners on consent to treatment is helpful. We are happy to provide clarification on any of the points we have made and reiterate that we welcome the guide and its content.