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FDHS/FDLD. Issues of Consent and Mental Capacity. Learning Outcomes. To discuss the Mental Health Act 1983 To identify how why and when we would obtain consent. To discuss valid consent. To describe the process of assessment. To identify the key parts of the Mental Capacity act.

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Issues of Consent and Mental Capacity

learning outcomes
Learning Outcomes
  • To discuss the Mental Health Act 1983
  • To identify how why and when we would obtain consent.
  • To discuss valid consent.
  • To describe the process of assessment.
  • To identify the key parts of the Mental Capacity act.
  • To discuss individual case material relating to consent and capacity.
mental health
Mental Health
  • Remains something of an ethical problem with lots of conflicts and problems to solve.
  • 1 in 4 people in society will suffer from a mental health condition at some point in their lives.
  • There is a large range of mental health conditions.
  • Mental Health conditions do come with negative assumptions and stereotypical views of the condition.
the mental health act 1983
The Mental Health Act 1983
  • Many people with mental health issues are treated with community care services.
  • This is the key piece of legislation.
  • Alongside it comes a code of practice which gives guidance on application of the Act.
key terms
Key terms
  • ‘Patient’ - “a person suffering or appearing to suffer from a mental disorder” (Brammer, 2007, p:464)
  • Mental disorder
  • Mental Impairment
  • Severe mental impairment
  • Psychopathic disorder
  • Approved social worker
  • The nearest relative
compulsory powers
Compulsory powers

“Compulsory admission should only be exercised in the last resort”

Sections 2-5 of the mental health act deal with compulsory detention.

The emphasis of the act is on the least restrictive intervention possible.

Detention is considered on diagnosis and risk assessment.

informal patients
Informal patients
  • This covers the majority of patients
  • A person over the age of 16 can become an informal patient in a hospital
  • Introduces the concept of guardianship

Formal powers

rights when in hospital
Rights when in hospital
  • Basic care and accommodation
  • Informal patients have to give consent to treatment.
  • The act provides safeguards for surgical procedures.
  • Patients (unless detained by a criminal court) retain their right to vote.
  • Can send and receive correspondence
  • Can be visited by friends and family
  • If detained cannot take legal action.
  • Patients have the right to appeal their detention through a Mental Health Tribunal.
  • Patients also have the right to after care on discharge
children and young people and mental health
Children and young people and mental health
  • The criteria for formal detention in hospital are the same for children and adults regardless of age.
  • Children can be admitted informally with the consent of parents.
  • A child’s mental health status must be considered in any assessment of the child.

Seeking consent:

  • Why would we do it
  • When would we do it
  • Where would you do it
  • How would we do it
for a person s consent to be valid the person must be
For a person’s consent to be valid, the person must be:
  • capable of taking that particular decision (‘competent’)
  • acting voluntarily (not under pressure or duress from anyone)
  • provided with enough information to enable them to make the decision

Department of Health, Social Services & Public Safety (2003)

capacity to consent
Capacity to Consent
  • Capacity is assumed to be present it is up the health care professional/s to demonstrate capacity is absent
  • Capacity can fluctuate ( depends on mental state)
  • Capacity can be ‘patchy’- i.e. the patient can consent in some areas but not others
  • Capacity can be temporally affected (alcohol, drugs, emotional state)
children and young people
Children and Young People
  • 16-17 year olds can consent to medical treatment there are specific circumstances that the refusal by a competent young person can be over ruled
  • Under 16 years - Gillick Competency applies
  • children and young people who do not have capacity - person with parental responsibility can consent
the process of assessment
The Process of Assessment

Five key phases

  • Collecting data
  • Validating data
  • Organizing data
  • Identifying patterns
  • Reporting
  • Must reflect accurately in relation to the service user’s needs
  • Service user rights need to be respected and empowered
  • The collection of data types must be suitable to the task ( don’t use a thermometer to check their weight)
  • A consideration of the threats to the validity of the data must be taken on board
  • Avoid seeing the need of the service before the service user ( e.g. ‘well we haven't got any hoists so don’t asses their mobility’)
  • Must allow a level of transparency of ‘ how ‘ you have assessed not just ‘ what you have assessed
decision making
Decision Making

Issues to consider are –

  • What is possible ( thinking in an out of the box)
  • What is probable
  • What is desirable
  • What is ethical
  • What may be possible
  • What problems may result
  • What you need to do this
the five principles of the mental capacity act
The five principles of the Mental Capacity Act
  • Every adult is assumed to be able to make their own decisions unless proved otherwise
  • People should be supported to make their own decisions
  • People have the right to make what others may think is unwise or eccentric decisions
  • If a person lacks capacity then anything done should be done in their best interests
  • Anything done on behalf of people who lack capacity should be the least restrictive of their basic rights and freedoms

Making choices

task question
Task Question

Why would you deprive someone of their liberty?

How could you deprive someone of their liberty?

  • Assessment
  • Advocacy
  • Authorisations – urgent and standard
  • Reviews