The Mental Capacity Act 2005 (‘MCA’), which came into force in October 2007, deals with the general issue of when treatment can be given to incapable adults without their consent. It applies to all medical treatment and is therefore relevant legislation for all healthcare professional and carers. It is important that optometrists should be aware of the MCA’s provisions, but it should not cause them any real difficulties as the majority of patients will attend the practice specifically for a sight test. In doing so they may be deemed to be consenting to the treatment.
The MCA may be more relevant where optometrists provide domiciliary services to elderly patients or treatment to patients with a mental illness, who are refusing to be treated. In these cases the starting position in law when considering the patient’s consent to treatment is that every adult has the right to decide whether or not he or she will accept medical treatment. Treatment should, not be given without the consent of the patient. To do otherwise, or obtaining consent by fraud or duress, could make the clinician who treats the patient liable to a charge of committing the criminal offence of battery. Where treatment is provided to a capable patient without their consent, it will not be a defence to say that the clinician considered the treatment to be in the patient’s best interests.
The MCA provides, however, that that if a patient is incapable of making a decision regarding his or her treatment it may be given if it is necessary in the patient’s best interests, irrespective of whether consent has been given.
The starting position is that a patient must be incapable of making the decision regarding treatment because of an impairment of, or disturbance in the functioning of, the mind or brain; which results in them being unable to
a) understand and retain information relevant to the decision;
b) use or weigh the information as part of the process of arriving at a decision (including inability to believe the information); or,
c) communicate his decision by any means.
In addition, there are some important principles enshrined in the MCA that apply to all healthcare professionals, carers or family and which provide further safeguards for patients.
Firstly, every patient should be presumed capable of providing consent to treatment, unless incapacity is established using the criteria above. The fact that a person suffers from a mental disorder does not necessarily mean he or she is incapable of consenting to medical treatment.
Secondly, all reasonable steps must be taken to help a patient make a particular and relevant decision. As an example, in one case the consent of a patient who communicated with his carer by blinking his eye was deemed to be valid. A person should not to be treated as unable to make a decision merely because the decision is unwise.
All treatment administered to patients who lack capacity must be in their best interests. In order to establish what these are, it is necessary to weigh up the advantages and disadvantages of the treatment and if the result is in favour of the treatment being administered then it will be considered to be in the patient’s best interests. The decision is always for the clinician as to what is in the patient’s best interests.
It is important to emphasise that each case should be examined in the light of its own particular facts and the treatment of involuntary patients without their consent should only be undertaken in strictly defined circumstances according to law. As such, it will be important that your staff are aware of the legislation, however, it is unlikely to require a change in the day to day practise of most optometrists.
31 July 2008.
