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Mental capacity assessments and discharge decisions
1 King’s College London (Institute of Psychiatry), Box 60, De Crespigny Park, London SE5 8AF, UK
2 Nottinghamshire Healthcare NHS Trust, School of Law, University of Nottingham, Nottingham NG7 2RD, UK
3 Health Services for Older People, Nottingham City Hospital, Nottingham NG5 1PB, UK
Address correspondence to: R. Stewart. Tel: (+44) 020 7848 0136. Fax: (+44) 020 7277 0283. Email: r.stewart{at}iop.kcl.ac.uk
Uncertainties and conflicts around ‘place of discharge’ have always been a feature of the care of older people. On one hand, placing a person by coercion or deceit in an institution where they stand little chance of leaving is a fundamental human rights infringement. On the other hand, letting someone go home with poor memory, impaired judgement and little appreciation of risk may be irresponsible or even negligent.
The question of capacity commonly arises when an inpatient states that they wish to return home after discharge but where staff have concerns about their safety or when relatives insist that a care home placement is required. Currently, the trigger for formal capacity assessment largely depends on a person’s ability to voice their opinion. A concentration on uncertain or contested cases is attractive, but good decision-making practice should go much further than that.
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Conflicts of interest |
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Clinical teams may have agendas that conflict with the autonomy of the person under their care. Their dominant consideration is often ‘safety’. This may arise from a genuine concern about welfare but might also involve fear of blame or litigation arising from an adverse incident following discharge. The perceived ‘safest’ option is usually to discharge to a care home, although it is difficult to know whether someone will really be ‘safer’ (i.e. have reduced morbidity and/or mortality) residing in an institutional facility against their will, compared to returning home ‘at risk’. Moreover, safety is a relative term, and most mishaps will be unpleasant or inconvenient (falling or getting lost) rather than catastrophic (fracturing a hip or a traffic accident). Concerns over length of inpatient stay may be an issue and may lead to too-early discharge to care homes where supply is plentiful, or an over-willingness to take a chance at home when a decision for care home placement inevitably means a lengthy delay in hospital.
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The legal position |
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The law in England and Wales relating to this issue has so far been governed by cases rather than statute law. Patients who have capacity must have their decision respected, but decisions may be made in the best interests of those who lack capacity. The Mental Capacity Act 2005, which is expected to come into force in 2007, does not alter that, although it will re-enforce the rights of people with incapacity to be involved as much as possible in decision-making, and their rights to the least-restrictive care that can be effectively achieved. Their views and values, both in their incapacitated state and before they lost capacity, will also be given more weight. Unlike under the current law, they will when competent be able to appoint individuals such as specific family members to make health and personal care decisions for them.
The current position is in a state of flux because of the decision in HL v UK (ECHR Appn no. 45508/99; judgement 5 October 2004, the ‘Bournewood’ case). This case held that the current safeguards for the admission of people with incapacity as informal patients to hospital were insufficient under the European Convention on Human Rights. A government consultation process is underway and is likely to affect both hospital and care home admissions.
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Assessing capacity |
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Capacity should be assumed to be present unless proven otherwise. Lack of understanding must be due to a mental disorder, and clearly any acute mental disorder (functional or organic) should be treated before long-lasting decisions such as place of residence are considered. A person has capacity if they are able to understand the information relevant to a decision, can retain the information long enough to make the decision and can appreciate the consequences of deciding one way or another. A person cannot be considered to lack capacity merely because they make an unwise or a bizarre decision. Unfortunately, there is no unequivocal test of understanding. Furthermore, it is unsatisfactory if a person’s ‘understanding’ of risk is judged against limited information available from assessments carried out in unfamiliar surroundings, and capacity assessments are probably too often carried out using a clinical team’s guesswork as the ‘gold standard’. In dementia, ‘trial discharges’ should perhaps be instigated more routinely to determine both a person’s insight into success and sustainability (relevant to assessing their capacity), as well as their ability to manage at home (relevant to assessing best interests where capacity is impaired).
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Best interest |
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Lack of capacity is not a carte blanche for care home discharges. An assessment of best interests in someone lacking capacity may well conclude that a ‘risky’ trial at home should be undertaken, for example, in someone who was known to be independently minded, a risk taker, or had previously expressed strong opinions against going into a care home. Each case needs to be decided on its own facts.
One major practical problem is that the most difficult discharges are made possible only with family support. If a family’s view is that home discharge should be tried, it will be hard to resist. Similarly a family insistent against discharge home may essentially have a veto, although ideally a consensus can be reached after discussion and explanation about support available, the law and the nature of a ‘trial at home’.
Things may get more intractable after a failed trial of discharge. A further assessment of capacity and best interests must be made, but this time with the extra information afforded by the trial.
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Who should assess capacity? |
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There is no consensus on who should assess capacity, and we suspect that practice varies. Every health care assessment or intervention requires consent, so ability to assess capacity should be a core skill for all health and social care professionals. It is likely that the majority of decisions are made informally by responsible clinicians. Assessment of capacity is sometimes assumed to fall within Old Age Psychiatry expertise. There is no particular reason why a psychiatrist should be any more qualified to assess capacity than a physician, assuming there is no doubt as to the presence and contribution of ‘mental disorder’. However, the presence of conflicts of interest suggests that an independent opinion may be safest, but is resource intensive and carries an opportunity cost for generally under-provided services.
So far, the courts have been generally supportive of care professionals making judgements in good faith. This is unlikely to change, although professionals will be expected to be aware of the more particular approach of the Mental Capacity Act 2005.
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How can autonomy be protected? |
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These issues highlight the importance of safeguarding the autonomy of people with dementia who find themselves in hospital. New legal structures may formalise the assessment of capacity, but many inpatients who retain capacity remain very vulnerable to coercion, however well-meaning, from clinical teams as well as from their friends and family. Charitable organisations, in theory independent and well-placed to support human rights, are caught in the same position as clinical teams since they exist in part to support caregivers whose interests may not coincide with the autonomy of the person in question. There is a pressing need for truly independent advocacy for people with dementia, who are amongst the most vulnerable populations in inpatient care.
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A way forward |
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These decisions are never easy, but we can identify some processes that may safeguard as far as possible the autonomy of patients, carry relatives’ support and keep clinical practice legal:
- More open involvement and communication with both patients and families.
- Explanation for patients and families of what the law and best practice comprises, including the right to take risks and make unwise decisions.
- A workable system of patient advocacy.
- More frequent formal assessment (and recording) of capacity and best interests assessments as part of the discharge planning process.
- The more frequent use of trial home discharges. This will entail closer liaison with community old age mental health teams and services providing intensive social support for dementia, who should be in a better position to assess and monitor ability to cope at home, as well as the development of liaison services with multi-disciplinary teams experienced in the community management of people with dementia.
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