The Mental Capacity Act 2005 – implications for anaesthesia and critical care

Abstract

Summary The Mental Capacity Act 2005 is due to come into force in April 2007. The Act provides a protective statutory framework for decision‐making on behalf of incompetent adults, representing, in the main, a codification of the common law that had already developed in this area. For example, ‘advance decisions’ are now given formal statutory recognition. Importantly, the Act creates a new specialist ‘Court of Protection’ to manage the Act's enforcement, and an office of ‘Public Guardian’ to act as registering authority for new ‘Lasting Powers of Attorney’ and ‘court‐appointed deputies’, both of which will be able to make proxy decisions about medical treatment for adult patients without capacity. There is also considerable regulation concerning the participation of adults without capacity in research. Given that their practice routinely involves the medical treatment of adults who lack legal capacity, anaesthetists and intensivists should familiarise themselves with the Act's key precepts.

The Jehovah's Witness and dementia: who or what defines ‘best interests’?

“…The new statutory framework for the management of mentally incapacitated adults comes into force in 2007 [12] and the implications for anaesthesia and critical care have been described [13]. The problems identified within this case illustrate the need for reform but it can be argued that those same problems would remain unresolved, leaving ongoing uncertainty for practitioners in this area.…”

A reply

“…I would like to offer some comments on his article, and draw on other decision models which I feel can enhance the way we make safe decisions. Work on anaesthetists' non-technical skills has identified the component parts of decision making as identifying options, balancing risks and benefits, and re-evaluating the decision [2]. The use of decision analysis as outlined by Yentis provides an excellent way of achieving this, particularly the re-evaluation of the decision after the event that is an invaluable but often overlooked aspect when teaching trainees.…”

“…Although Dr Coldicott states that advance directives will become legally binding as part of the Mental Capacity Act, they will not be legally binding unless the circumstances which subsequently arise have been considered when the advance directive was originally made [2]. Since it is unlikely that surgery and anaesthesia will have been contemplated, but yet, as discussed, may be appropriate, the existing DNAR order will probably no longer be valid in the peri-operative period.…”

“…This consists of collection and assimilation of information, and prediction of what will happen [2]. Whilst decision analysis may overcome our shortcomings when deciding what to do, it is of little help in deciding what the situation 'is'.…”

Pride and prejudice

“…From critical care outreach [14] to trauma [15], from transplantation policy [16] to equipment design [17], from health service efficiency [18] to how best to train our future doctors [19], from epidemiology [20] to cost-effectiveness of novel therapies [21], and from ethical issues [22] to infection control [23], there are precious few areas within hospital medicine or the wider therapeutic community where anaesthetists do not play an active part in refining and improving the patient experience. I believe that there is a strong and cogent argument to be made that, at its best, anaesthesia more than any other specialty can represent the platonic ideal of the truly holistic doctor epitomised by John Snow, the earliest specialist in our art and voted as 'greatest doctor ever' by the readers of Hospital Doctor in 2003.…”