From the Guidelines
In cases where an adult lacks capacity to consent and has no relatives, healthcare providers should seek a court-appointed guardian or advocate to make decisions on the patient's behalf, as guided by the Mental Capacity Act 2005 1. This process typically involves petitioning the court for an emergency guardianship order. While awaiting the court's decision, medical professionals should make decisions based on the patient's best interests, considering any known preferences, values, or advance directives, as outlined in the guidelines for obtaining valid consent for gastrointestinal endoscopy procedures 1. Some key points to consider in this process include:
- The principle of 'best interests' is a concept that goes wider than 'best medical interests' and includes factors such as the wishes and beliefs of the patient when competent, their current wishes, their general well-being, and their spiritual and religious welfare 1.
- If a person deemed to lack capacity has clearly indicated in the past, while competent, an intention to refuse treatment in certain circumstances (an 'advance decision', 'living will' or an 'advance directive'), and those circumstances arise, healthcare providers must abide by that decision if it is valid and applicable 1.
- In urgent situations, doctors may need to act immediately to preserve life or prevent serious harm, following the principle of implied consent, as recommended by the Association of Anaesthetists of Great Britain and Ireland 1. It's crucial to involve a multidisciplinary team, including ethics committees, to ensure decisions are made ethically and in the patient's best interests. Throughout this process, all efforts should be made to involve the patient as much as possible, even if they lack full capacity, and to document all decision-making processes thoroughly. This approach balances the need for timely medical intervention with the protection of the patient's rights and autonomy.
From the Research
Obtaining Informed Consent for Adults Lacking Mental Capacity
To obtain informed consent for an adult patient lacking mental capacity and without available relatives or legal representatives, the following steps can be taken:
- Identify the legal framework that applies, such as the Mental Capacity Act (MCA) 2005 in England and Wales 2
- Determine if there is a valid and applicable Advance Decision or an appointed decision-maker, such as a Lasting Power of Attorney or a Deputy appointed by the court 2
- If no decision-maker is available, the responsible clinician may make decisions on behalf of the patient 2
- Consider the patient's best interests and values, wishes, feelings, and beliefs when making decisions 2, 3
- Arrange an early meeting with family and friends to share information about the patient's medical condition and values, wishes, feelings, and beliefs 2
Decision-Making Approaches
Different approaches exist to surrogate decision-making, including:
- A person-centred, flexible best interests (substituted interests) approach, as used in England and Wales 2
- Seeking guidance from a surrogate decision-maker, either previously selected by the patient or appointed by the courts 3
- Promoting a patient's best interests if there are no surrogates willing or able to exercise substituted judgment 3
Challenges and Complexities
Healthcare practitioners may face challenges and complexities when assessing decision-making capacity and obtaining patient consent, including:
- Uncertain knowledge and inconsistent application of legislative frameworks 4
- Deficient knowledge of consent and decision-making capacity as legal constructs 4
- Complexity of dual regulatory regimes governing research involving adults who lack capacity to consent 5
- Risk of 'evidence biased' medicine due to exclusion of vulnerable populations from medical research 5