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Mental Capacity Act

QUESTION: Why do I need to know about the Mental Capacity Act 2005?

If you are worried that a relative in hospital might be, or has been, put on the LCP without their permission, the Mental Capacity Act is the piece of law that has allowed the hospital to do this.

On this page we’ve tried to lay out a few simple things that are worth knowing to spot if the Mental Capacity Act is being used. As well as this, we’ve outlined a few key details about what the Mental Capacity Act actually is and how it’s used to help you make sense of this complex issue.

See the contents and go to the sections that are helpful for you.

Contents:

  1. What is Mental Capacity?
  2. What is the Mental Capacity Act?
  3. How is the Mental Capacity Act being used to wrongly put people on the LCP?
    3.1.   Does your relative have a learning disorder?
    3.2.   Has your relative been put on painkillers or other sedative medications, which render them unconscious?
    3.3.   Can your relative swallow?
    3.4.   Is your relative in a comatose state?
  4. History: How the Tony Bland case started the Mental Capacity Act.
  5. Conclusion: Without the Mental Capacity Act the LCP wouldn’t work.

 

1. What is Mental Capacity?

If a person lacks mental capacity it means that they’re unable to make decisions for themselves because there is something affecting their brain, which is stopping them from being able to understand properly.

Mental capacity can be lost if a person has had a brain injury, or has dementia, a learning disability, a mental health problem, or has suffered substance misuse.

 

2. What is the Mental Capacity Act 2005?

The Mental Capacity Act (MCA) is a piece of law that is supposed to exist to support people who lack mental capacity. All 88 pages of the document are available online here.

If a patient is found to lack mental capacity, this means that someone else will have to make their decisions for them.

The MCA is meant to help stop people who lack mental capacity from being taken advantage of or from being mistreated. However, unfortunately it has been used to help legally justify putting patients on the LCP that may not belong on it.

 

3. How is the Mental Capacity Act being used to wrongly put people on the LCP?

Most people put on the LCP did not give their consent. The reason this is legal is because the MCA is being used. If a patient is assessed to lack mental capacity, a doctor can make the decision to put them on the LCP without discussing it with them first.

If you are worried about a loved one being put on the LCP it is important to know about the four ways the MCA can be used wrongly.

  1. Does your relative have a learning disorder?
  2. Has your relative been put on painkillers or other sedative medications, which render them unconscious?
  3. Can your relative swallow?
  4. Is your relative in a comatose state?

If one of these four questions applies to you, please see the relevant section below for more information.

For more information on the law, see here.

3.1. Does your relative have a learning disorder?

If your relative has a learning disorder or some other form of disability, it may be wrongly assumed that they lack mental capacity.

On the 19th of March, 2013 a Confidential Inquiry published findings of a two year investigation into the deaths of 247 people with learning disabilities. It found that as many as 37% of deaths of people with learning disabilities could have been avoided. The inquiry showed that family and carer blamed the ignorance and indifference of medical staff towards people with a learning disability.

Although the MCA explicitly says that it can’t be assumed that a person is mentally incapable until an assessment has been made, personal stories reveal that the proper precautions are usually not being made.

If a learning disabled person is able to make decisions for them self (but maybe they express their decisions in a different way) their wish to not be put on the LCP may be overlooked.

See personal stories for more.

For more information on the Confidential Inquiry see here.

3.2. Has your relative been put on painkillers or other sedative medications, which render them unconscious?

Before being put on the LCP, it is common, according to evidence from the official 2011 LCP Audit, to see patients be given a cocktail of sedative medications such as opiates, benzodiazepines and sedative antisecretory drugs such as hyposcine hydrobromide.

This cocktail of drugs will put the patient in a comatose state. The danger with having a patient put in a coma, even a temporary one, is that they no longer have mental capacity according to the MCA. As the MCA states in section 2.2, “It does not matter whether the impairment or disturbance is permanent or temporary.” This means that a doctor or nurse is free to put them on the LCP without their consent, by putting them in a comatose state, even though they put them in that comatose state.

Of course, these sedative may be a necessary pain relief for the patient, but there may be other options for pain relief, too, and in many cases this comatose state could be avoided.

If possible, it is an advantage to seek independent advice on pain relief from a palliative care expert that does not endorse the LCP.

3.3. Can your Relative Swallow?

It’s quite complicated to assess whether or not a person lacks mental capacity, so to help medical staff have a check list of things which if a person can’t do indicates they are mentally incapacity. As bizarre as it sounds, one of these things is swallowing.

This is dangerous, because the MCA only protects people who can swallow from having their water or food taken away. Section 4.13 of the MCA states: “If a person can swallow and digest safely then he or she should always be offered food and water by mouth.”

If a person can’t swallow, however, the MCA and the LCP together can be used to legally justify food and water being withdrawn until the patient dies.

Section 4.13 of the MCA states: “Many patients with serious mental incapacity may not have the ability or the strength to ask for food or drink or may not be able to swallow properly. The Law requires that these patients are not neglected and that they do not suffer needlessly as a result of hunger or dehydration.” On the surface of it, this may sound like a good thing, but spelled out what this means is that food and water CAN be withdrawn from a patient if it is deemed not to be needless suffering.

The LCP states, “When a patient is dying they generally eat and drink less… Fluids via a drip (AH) are given when the doctor/clinical decision that this will be beneficial and not cause undue distress to the patient.”

Spelled out, what this means is that the LCP makes the (scientifically invalid) argument that if a patient is dying it could cause discomfort/distress to give them food or water. The implication is that it, therefore, does not cause ‘needless suffering’ to withdraw food or water, and it is therefore legal to do so according to the MCA.

3.4. Is your relative in a coma or persistent vegetative state?

Above is section 3.2 it was explained that if a patient is in a temporary comatose that a patient will be considered to lack mental capacity and so someone else can decide for them to put them on the LCP. This is just as true if the comatose state is persistent.

As with all of these cases, it is written in the LCP that nothing will be decided without the patient’s permission. However, legally, since Tony Bland, it has become possible for hospitals to ignore relative’s wishes.

For more on the law see here.

For more on Tony Bland see below

 

4. History: How the Tony Bland case started the Mental Capacity Act

Tony Bland was a victim of the 1989 Hillsborough disaster in which 95 football fans died. Bland survived but he was in a coma and the doctors believed he would never come out of it. He was described as being in a ‘persistent vegetative state’ (PVS).

Tony was able to digest food normally but he could not feed himself. The doctors said it was dangerous to let him swallow his food so he was given food and water through a tube.

After Bland had been in his coma for four months, his doctor, Doctor Howe, made plans to take him off his food and water. He was warned by the police that if he did this he would face a murder charge, so Doctor Howe made an application to court. Four years later Tony Bland became the first person to be allowed to die by having his food and water withdrawn.

This case helped change things for the MCA to come into place. The case changed food and water in the eyes of the law so that they now counted as medicine (medicine can be withdrawn if it is supposedly not helping). The MCA also acts to protect doctors such as Doctor Howe from facing murder charges as he would have without the courts approval.

 

5. Conclusion: Without the Mental Capacity Act, the LCP wouldn’t work

The Mental Capacity Act shifts responsibility from the medical profession to attorneys. This gives doctors too much freedom from liability when making medical decisions. This is why they can get away with so much, like putting patients on the LCP without asking relatives permission, because doctors are not being held accountable.