Capacity v Best Interest

A patient with dementia currently has capacity, and thus able to make unwise decisions. If that patient is fully aware of their condition and for example now experiencing swallowing difficulties and the consequences of aspiration, but does not wish to accept the advised treatment (thickeners for fluids). Which would be the most appropriate way forward? Best Interests (involving family, patient, and medical & nursing team), Advanced Directive (from patient), or disclaimer from patient (to acknowledge their intentions and awareness of consequences, thinking about the person that signs themselves out of hospital). Additionally would family or the medical nursing team be able to over rule.

Best Interests (involving family, patient, and medical & nursing team

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When you say “best interests” what do you have in mind? Section 1(5) MCA 2005 states:

An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

If your patient has capacity to make the relevant decisions then “best interests” doesn’t arise.

Though maybe you meant it as a short-hand for “doing your best for the patient”.

I’ve never come across your situation so hope that others will answer more fully!

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As Jonathan says, if the person has capacity, best interest are irrelevant. The person gets to make their own decisions and no-one has the right to force them to accept treatment they don’t want.

The person’s best chance of having their wishes respected if/when they lose capacity is to make an advance decision refusing the relevent treatment. Because the treatment in question is potentially life sustaining, the decision would need to in writing, witnessed (and carefully worded).

Neither family nor professionals can lawfully override an advance decision that is valid and applicable to the treatment in question (but, in practice, there can sometimes be room for doubt/argument about both validity and applicability).

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In this case the person was previously S3 MHA taken off this, DoLS applied for and declined, as clearly capacity was evident. As such is an informal patient, the person is otherwise happy to stay with us. Generally 99% of patients are under DoLS, or various sections of MHA 1983.

Of course, always the patient is in the centre of care. And I always wish to follow as far as is practicable their expressed wishes and intentions. And to Advocate on their behalf.

Also thinking if a family member had lasting power of attorney for Health and Social Care. Would they be able to overrule the patients rights in this case.

From what I have learned until it is proved otherwise. Whilst the person has capacity, legally neither family or us in the medical nursing team can overrule the persons decision.

A relative with a lasting power of attorney (LPA) could do nothing while the person still has capacity.

If the person lost capacity, then an LPA holder would be able to consent to treatment on their behalf (provided the LPA didn’t exclude the treatment in question). That wouldn’t be a mandate simply to reverse the person’s previous decision. The LPA holder would have to act in the person’s best interests. The patient’s known wishes would be an important factor in deciding what those best interests were - though not necessarily decisive.

That said, if the person is determined not to accept treatment, it’s hard to imagine they’d give that decision to someone else via an LPA.

If the patient loses capacity and hasn’t made a valid and applicable advance decision (or given someone a relevant LPA), then whether to treat becomes a best interests decision for the person in charge of the treatment (though they would normally be expected to consult relevant family and staff before deciding). Like all best interests decisions that would have to take into consideration the person’s known wishes and feelings.

If the patient was known to be adamantly opposed to treatment, but family/treating staff think that it is nonetheless in their best interests, it might be right to ask the Court of Protection to decide (but you’d be advised to take legal advice about that).

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This person may well have capacity to make the decision in question, but it is crucial that everyone is aware of the decision in question, and does not simply interpret the concept of capacity globally. The first post clearly suggests that the person has capacity to make decisions regarding their feeding arrangements, although it does not explicitly state that. Further down the thread there is mention of the person having been assessed for DoLS, but ‘clearly capacity was evident’. In the latter case, the relevant capacity was regarding the person’s accommodation status (or hospitalisation in this case), and not specifically their capacity to make decisions regarding their feeding regime (although care and treatment are also relevant here).
It’s possible for a person to have capacity for some decisions and not others, so it’s vital that assessments are based clearly on the decision in question, and do not slip into a more general conclusion.
I have come across a situation where a person fully understood the nature of the decision and the likely outcomes to people in general if advice was not followed (diabetic care in this case), but due to their mental disorder felt that the consequences couldn’t possibly happen to them. The difference here is the understanding of the information relevant to the decision and the ability to use and weigh it. Not always easy to distinguish.