Enhancing mental capacity
Dr Sarah JL Edwards
Senior Lecturer in Research Governance
Contents
• Patients’ understanding medical
information
• Assessing mental capacity
• Treating those without capacity
• Informational manipulation
Patients’ understanding
• cancer screening “the 5-year survival of
patients diagnosed with early stage
cancers is much greater than that of
patients diagnosed with later stage
cancers” (Schwartz 1999, p.128).
• People usually believe that this shows
screening is beneficial, but patients
diagnosed earlier live with a cancer
diagnosis longer.
Understanding Risk
• Grimes and Snively (1999) asked 633
women in a gynaecology outpatient’s clinic
to compare which of the risk levels
represented by 8.9 per 1000 and 2.6 per
1000 was the higher
• Risks stated as rates were better
understood than as proportions (Lloyd
2001, p.i16)
Goal of treatment
• Gattellari et al. (2002) reported that 80% of
patients who had been told by their
physician that there was no chance of cure
stated that there was actually some
chance of cure, while 15% stated that their
chance of cure was at least 75%.
Assessing Capacity
A person lacks capacity in relation to a
matter if at the material time he is “unable
to make a decision for himself in relation to
the matter because of an impairment of, or
a disturbance in the functioning of, the
mind or brain.” s2(1)
In practice…
• Assume patient has various degrees of
ability along certain dimension that can be
measured
• ‘Expert’ judgement/impression
• Neurological predictive factors
• 18 different ‘objective’ instruments
• Constructs have different meanings
• First- or third-person scenarios
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The Mini-Mental State Exam
Patient___________________________________ Examiner
____________________________ Date____________
Maximum Score
Orientation
5 ( ) What is the (year) (season) (date) (day) (month)?
5 ( ) Where are we (state) (country) (town) (hospital) (floor)?
Registration
3 ( ) Name 3 objects: 1 second to say each. Then ask the patient
all 3 after you have said them. Give 1 point for each correct answer.
Then repeat them until he/she learns all 3. Count trials and record.
Trials ___________
Attention and Calculation
5 ( ) Serial 7’s. 1 point for each correct answer. Stop after 5 answers.
Alternatively spell “world” backward.
Recall
3 ( ) Ask for the 3 objects repeated above. Give 1 point for each correct answer.
Language
2 ( ) Name a pencil and watch.
1 ( ) Repeat the following “No ifs, ands, or buts”
3 ( ) Follow a 3-stage command:
“Take a paper in your hand, fold it in half, and put it on the floor.”
1 ( ) Read and obey the following: CLOSE YOUR EYES
1 ( ) Write a sentence.
1 ( ) Copy the design shown.
_____ Total Score
ASSESS level of consciousness along a continuum ____________
Alert Drowsy Stupor Coma
McArthur competence tool
• Semi-structured interview
• In conjunction with clinical assessment
• Measure on scale 0-6
– understanding of the disorder and its treatment,
including associated risks and benefits
– Appreciation of the disorder and its treatment (belief)
– Ability to compare treatment with alternatives
– Ability to express a choice
• TRAT fictional vignettes
Grisso and Appelbaum Am J Psychiatry 1995; 152:1033-37
Re C (1994) 1 All ER 819
• Case Law
• Schizophrenic refusing amputation for
gangrenous leg
• Believed he was world class surgeon
• Court ruled he was competent to decide
• Not treated under Mental Health Act for his
schizophrenia!
Statue s3(1)
“A person is unable to make a decision for
himself if he is unable to:
1)understand the information relevant to the
decision;
2)retain the information;
3)use or weigh that in formation as part of the
process of making the decision; or
4)communicate his decision (whether by talking,
using sign language or any other means).”
Still no belief requirement
• No express requirement in test that person
believes the information or has insight into
illness
• If false belief results from psychotic delusion
then assessed formally under mental health
legislation
• Denial of the facts itself not sufficient to render
incapable
– (remember Jo and denial of his daughter’s death?)
Marginal or fluctuating capacity
• Protect person’s position in event s/he is
likely to regain capacity
• New right to have all ‘practical’ help
• New role for statutory Independent Mental
Capacity Advocate service (IMCA)
• May be duty to provide specialist help
outside normal fiscal restraints
• The decision-maker should make sure that
all practical means are used to enable and
encourage the person to participate as
fully as possible in the decision-making
process and any action taken as a result,
or to help the person improve their ability
to participate.
Help to restore capacity
• The explanation must be in the most
appropriate and effective form of
communication for that person.
• There are different methods for people
who use nonverbal means of
communication (for example, observing
behaviour or their ability to recognise
objects or pictures).
Use of equipment?
• It may be important to provide access to
technology. For example, some people
who appear not to communicate well
verbally can do so very well using
computers.
MCA Code of Practice chapt 3
• using simple language and/or illustrations
or photographs
• asking them about the decision at a time
and location where the person feels most
relaxed and at ease
• breaking the information down into easyto-understand points
• using specialist interpreters or signers to
communicate with the person.
Yes/No
• Avoid questions that need only a ‘yes’ or
‘no’ answer (for example, did you
understand what I just said?)....But there
may be no alternative in cases where
there are major communication difficulties.
In these cases, check the response by
asking questions again in a different way.
Treating non-competent adults:
best interests
• Decisions made under the MCA must be
made in the person’s best interests
• Sole exception is in event of valid and
applicable advance decision/statement
• Competent person may nominate another
(donee of Lasting Power of Attorney) to
make decisions in case of incompetence
Common law doctrine of necessity
• Act in best interests of non-competent
patient but treatment must be ‘necessary’
• Protect doctor from liability for acts which
could otherwise amount to battery
• Re F (Mental Patient: Sterilisation) [1990]
2 AC 1
Assessing best interests
• New statutory criterion s4
– Consider person’s past and present wishes and
feelings (particularly any advance statements)
– Consider beliefs and values that would be likely to
influence his decision if he had capacity
– Consider the other factors that he would be likely to
consider if he were able to do so
• Not complete checklist
• No order of priority given
• But assessment must be ‘reasonable’ in the
circumstances
Process of Consultation
• When ‘practical and appropriate’, decisionmaker must also consult following people as to
what would be in person’s best interests
– Anyone named by person
– Anyone engaged in caring for person or interested in
his welfare
– Any donee of a lasting power of attorney
– Any deputy appointed for person by Court
• Code of practice encourages as wide a range of
people who are close to the person except in
research where single ‘consultee’
Persuasion paradox
• Patient unaware that information has been
manipulated which could itself undermine
autonomy
Framing risk
• Schwartz (1999) “simple changes in the
format of otherwise identical numerical
information can profoundly influence its
interpretation” (p. 127).
• Given a choice between surgery and
radiotherapy, patients would tend to
choose surgery despite probable
outcomes being the same but framed
differently:
Whose interests?
• Manipulating information truly in patient’s
best interests?
• Hard vs soft paternalism
• Fairness and statistics
• Evaluating effects