Medical Defence Union Separates Fact From Fiction About Mental Capacity Act, UK

Main Category: Mental Health
Also Included In: Litigation / Medical Malpractice;  Primary Care / General Practice
Article Date: 09 Nov 2007 - 1:00 PDT


The Medical Defence Union (MDU), which represents over 50 per cent of UK doctors, has issued a series of Q and As to help members understand their obligations under the Mental Capacity Act and to clarify some of the common misconceptions which have been aired in the media.

Dr Hugh Stewart, MDU medico-legal adviser, said: "The Q and As make clear, contrary to some reports in the media, that an advance decision is simply a record that someone refuses specific treatment in the future, and cannot require a doctor to take steps to kill the patient. We also address the main principles of the Mental Capacity Act, such as how to establish whether a patient lacks capacity and the role of lasting powers of attorney.

"All doctors treat patients whose capacity is not clear-cut or who have long-term conditions which may leave them unable to make decisions for themselves. The Mental Capacity Act will have significant implications for the way doctors deal with such patients in their everyday practice. These Q and As focus on some of the possible scenarios which might arise under the Act. Of course, members will also be able to contact the MDU's medico-legal advice line for specific advice about any dilemmas they face."

One example of a Q and A produced by Ian Barker, an MDU solicitor, is:

I have read press reports that I could now face imprisonment if I fail to carry out a patient's request to help them die under the terms of their advance decision. Is this true?

Healthcare professionals must follow an advance decision if it is valid and applies to the particular circumstances. If they not do so there may be no lawful basis for the treatment given, and they may face a risk of prosecution. However, while a valid and applicable advance decision by a competent patient to refuse treatment must be respected, this is not the same thing as taking active steps to kill a patient. Although the MCA also provides for patients to make a written statement requesting certain treatment or expressing a preference (which is distinct from an advance decision to refuse specified treatment), this would be used to assess the patient's best interests when they have later lost capacity. Such statements will certainly not legally require doctors to take active steps to bring about a patient's death.

The law relating to euthanasia remains unchanged. Indeed, Section 62 of the MCA specifically states that nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisted suicide.

Other questions include:

My patient has had a second stroke. He has made an advance decision refusing consent for further treatment should he have another stroke but I think further treatment would be in his best interest as he has a reasonable chance of recovery. What should I do?

I have an elderly patient who has dementia and is suffering from breast cancer. Her daughter wants us to treat the cancer aggressively but her son disagrees. What is the best way forward?

One of my patients has made an advance decision but has now appointed a LPA. Which one takes precedence?

- MDU members can read the Mental Capacity Act Q and As on the MDU website at http://www.the-mdu.com

- The MDU is a mutual, not for profit, organisation owned by our members who include over 50 per cent of the UK's hospital doctors and GPs. Established in 1885, we were the world's first medical defence organisation. We defend the professional reputations of our members when their clinical performance is called into question. Our benefits of membership include indemnity for claims of clinical negligence and a wide range of medico-legal advisory services.

MDU Services Limited (MDUSL) is authorised and regulated by the Financial Services Authority in respect of insurance mediation activities only. MDUSL is an agent for The Medical Defence Union Limited (the MDU). The MDU is not an insurance company. The benefits of membership of the MDU are all discretionary and are subject to the Memorandum and Articles of Association.

http://www.the-mdu.com

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