Medicolegal issues

Where patients suffers from a mental disorder which interferes with their ability to make informed and autonomous judgements, mechanisms are required to protect them, and to enable others to take decisions on their behalf and in pursuit of their best interests, in so far as these can be determined. These mechanisms are necessarily legal, and each country has its own laws. Here only the general principles will be discussed, but some of the current arrangements in England and Wales will be used for illustration.

Doctors and lawyers have common responsibilities to ensure the protection of people who are incapable of deciding matters for themselves, and to promote the choice of those who can and should regulate their own lives. The careful assessment of whether individuals have or lack capacity is essential to protect their rights. (7)

'Capacity' is a legal rather than a medical concept (see Chapter11.1). The medical profession tends to use 'competence', as has been done hitherto in this chapter. A person does not have, or lacks, capacity in a generalized sense; instead, she has (or lacks) the capacity to make a specific decision or to carry out specific actions. She may have the capacity, for example, to name another person to act for her in the management of her affairs, while lacking the capacity to manage those affairs herself. Although the courts must ultimately decide on capacity, they look to doctors to advise on whether a mental disability (however that is defined in different jurisdictions) exists and whether the disability is affecting the individual's ability to make a set of decisions or to carry out a specific task.

The main areas of decision-making covered by different legal provisions concern the following:

• the management of property and other financial affairs

• decisions about medical treatment and general welfare

• entitlement to drive a car.

Decisions about marriage, voting, participating in civil or criminal cases in the courts, and fitness to hold a firearms license are rarer and will not be covered here. Management of financial affairs

Most jurisdictions allow for some sort of power of attorney, whereby a person (the donor), while still having capacity, is enabled to nominate another (the attorney) to act on her behalf in financial matters. She can choose to withdraw this nomination at any time provided that she still retains the capacity to do so. However, if and when she becomes ill and incapable of managing her affairs herself, the attorney may, if the jurisdiction allows it, continue to act on her behalf by registering with the appropriate authority that the donor is now incapacitated.

In England and Wales, for example, an Enduring Power of Attorney has to be registered with the Court of Protection on the donor's incapacity. From this point, the patient or donor can no longer withdraw the power from the attorney, and the latter may act with full powers over the donor's property and affairs. However, if anyone else thinks that the attorney is using his or her powers improperly (i.e. contrary to the best interests of the donor) and complaints are made, the authorities may investigate possible abuse of the incapacitated person. This is a simple and inexpensive mechanism for safeguarding the future financial interests of people who may lack capacity, for example in old age. However, it allows only the person's financial affairs to be managed—it does not extend to decisions about where the patient lives, or what medical or non-medical care she should receive. This situation might change in the future, because the United Kingdom Parliament is considering an extension of proxy decision-making on behalf of incapacitated persons to the area of general personal welfare and medical treatment.

If a person becomes incapable of managing her affairs without having given a power of attorney, then the authorities will have to make provision on her behalf without having had the opportunity to discover what her own preferences would have been. For example, in such situations in England and Wales the Court of Protection appoints a receiver, who effectively acts as an attorney would have done, although his freedom of action is less than that enjoyed by an enduring attorney. For example, a receiver may not, whereas an attorney may, dispose of capital assets without the Court's permission.

Medical treatment and general welfare

Under current law in England and Wales, no one may consent to medical treatment on another's behalf. Only the patient may consent, and the doctor's responsibility is to ensure that his or her capacity to do so is optimal. The doctor should ensure, for example, that the patient makes the decision at a time when his or her health is at its best possible level, that anxieties and distractions have been minimized, and that the relevant information has been presented in a way that makes it as easy as possible for him or her to understand, remember, and use it effectively in coming to a decision.

If, despite such efforts, the patient is thought to lack the capacity required for taking the decision in question, then the doctor must make the decision, acting in the patient's best interests as far as possible. There is no formal legal mechanism covering this process, but the medical decision may be challenged in court by an aggrieved person who thought that the doctor had acted wrongly—either in assessing the incapacity or in judging the patient's best interests. Therefore doctors are advised to approach the assessment of capacity systematically, and to document their findings with care. In coming to a view on the patient's best interests they need to gather information from relevant sources, for example the opinion of relatives and caregivers as to the patient's previous preferences and wishes, any written instructions left earlier by the patient including any nomination of people who should be consulted in such circumstances, and any options currently expressed by the patient.

Relatives are often surprised to discover that, although they should be consulted, they do not have any legal right to make such decisions on behalf of the patient, and indeed that they may be overruled if the views of other professionals about the patient's best interests differs from theirs.

These considerations apply to treatment for medical conditions. Decisions about treatment of a psychiatric illness may be covered by mental health legislation. The illness would have to meet the criteria set out in the relevant law that render the patient 'liable to detention'. The status of people who lack capacity to make their own autonomous decision about treatment (e.g. a decision to come into hospital voluntarily), but who are trustful enough about other people's intentions to be persuaded to accept these others' decisions on their behalf, has aroused intense controversy in England and Wales. On the one hand, it appears heavy-handed to subject them to legal processes when they have no objection to coming into hospital, for example; on the other hand, it seems a contempt of their rights to impose decisions on them that they cannot properly understand or to which they cannot truly assent. The case of one patient in this category was heard in successively higher courts in 1997 and 1998, culminating in a hearing in the House of Lords.(8) Although this case was resolved, many legal and psychiatric experts felt that it exposed a major deficiency in the existing law of England and Wales.

For many older people, especially those with dementing illnesses, admission to hospital is irrelevant to their needs. Some legal framework is required whereby their care outside hospital can be ensured—in their own home or in residential or nursing homes. The features of such a framework would need to include the following.

1. A mechanism for determining the capacity of the patient as safely and objectively as possible, and for nominating a responsible person to make proxy treatment and welfare decisions on his or her behalf when incapacity was demonstrated.

2. The power conferred on caregivers (through social services or other agencies) to deliver care to the patient, without his or her consent where he or she is judged to lack the relevant capacity. The power should enable caregivers to carry out their duty of care without being guilty of technical assault or invasion of privacy, but there should also be safeguards to prevent abuse of the older person by caregivers.

3. Powers to resolve disputes (e.g. between family and professional staff) as to the best means of supporting the patient, including the power to set aside, where necessary, a relative who unreasonably objects to the provision of care that is judged by others to be in the patient's best interests.

Driving

A very common and practical problem concerns the ability of older patients with early cognitive impairment to drive safely. There are two aspects:

1. the scientific—what degree of cognitive impairment makes driving unsafe?

2. the legal—what process should be followed in depriving a person of the entitlement to drive?

The scientific evidence so far is that the results of simple cognitive tests (e.g. the Mini-Mental State Examination) are very poorly correlated with driving ability, except at the more severe end of the spectrum of impairment. Much work has been done on creating objective tests of the abilities more directly involved in driving skills, but so far no quick method of assessment exists. Loss of the freedom to drive represents such a major loss of independence, and such a severe blow to self-esteem and the enjoyment of life, that some people, both family and professional, are reluctant to prohibit driving before it is really necessary. On the other hand, they are conscious of the risks to the public as well as to the patient, even if the patient him- or herself dismisses these risks. Legally, the position in England and Wales is straightforward: individuals have a duty to notify the Driving and Vehicle Licensing Authority ( DVLA) if they have an illness which might impair their ability to drive. A doctor has a duty to inform a patient that he or she has such an illness and that he or she is under an obligation to inform the DVLA; if the doctor believes that this advice has been, or will be, ignored, he or she has an obligation to inform the DVLA him- or herself. The duty of confidentiality to the patient is overruled by that requirement. Thereafter, the DVLA will arrange for the patient to receive an independent medical examination, and it is the DVLA, not the patient's own doctor, which decides whether the driving license should be withdrawn. If the patient fails to attend the medical examination (e.g. through forgetfulness or lack of insight), the license is automatically withdrawn.

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