References
Consent and capacity – considerations for the dental team part 2: adults lacking capacity
From Volume 44, Issue 8, September 2017 | Pages 762-772
Article
Dentists must gain consent from their patients for examination and treatment. However, when faced with situations where patients either lack capacity, or their capacity is questioned, the dental team should be aware of the legal and ethical considerations involved in assessment of capacity and acting in a person's best interests. Where an adult lacks capacity to consent for treatment, this should not become a barrier to provision of care. Clinicians should be aware of the processes and procedures involved, including where onward referral or involvement of other professional bodies may be indicated.
What is capacity?
Capacity is the ability of an individual to make a particular decision.1 Capacity is decision and time specific, and is determined by the type of decision, understanding of consequences, and ability to weigh up options.
A person may not have capacity for complex decisions or those with serious consequences, but can be perfectly able to make choices related to daily living, for example meals, activities, clothing and recreational activity.
Assessing capacity
The dental team makes continual assessment of a patient's capacity. From completion of undergraduate training, clinicians are responsible for assessing capacity as a fundamental aspect of the consent process. Where capacity for a specific decision is lacking, they must act in the patient's best interests.
In England, the Special Care Dentistry Commissioning Guide2 defines Levels 1, 2 and 3 complexity where:
The advice within the Commissioning Guide only directly applies to England, however, the guidance offered with regards to complexity of cases would be equally relevant across the UK, with more specialized and experienced practitioners being involved in the more challenging of cases.
Despite differing legislative frameworks, the fundamental principles of assessing capacity and acting in a person's best interests are consistent across the UK (Table 1).
| 1. Capacity is assumed until proven otherwise, and assessed continuously |
| 2. All reasonable steps should be taken to enable the person to make a decision for him/herself |
| 3. Making a decision considered unwise does not mean that the person lacks capacity |
| 4. All acts and decisions made for a person deemed to lack capacity must be in that person's best interests |
| 5. The least restrictive option should be selected to achieve the aim for which the decision or action is intended |
| 6. Wishes and beliefs prior to loss of capacity must be considered |
| 7. Takes into account the views of those close to the patient |
With the aims of empowering and protecting those who cannot make a decision for themselves, the Mental Capacity Act 2005 (MCA)1 applies in England and Wales, the Adults with Incapacity (Scotland) Act 2000 (AWI)3 applies in Scotland and the Mental Capacity Bill has recently passed royal assent in Northern Ireland.4 As discussed throughout this article and in Part 1, there are some differences between these acts relating to incapacity documentation, who may act on a person's behalf, and how they may act for that person.
Assessment of capacity is carried out in two stages:
| Can the patient: | 1. Understand the information, including risks and benefits? |
| 2. Retain the information for long enough to make a decision? | |
| 3. Weigh up the options relating to the decision? | |
| 4. Communicate his/her decision by verbal or non-verbal means? |
If the answer to any of these questions is ‘No’, then at that time, the dentist can have reasonable belief that the patient lacks capacity for that particular decision.
These ‘tests of capacity’ questions are rarely asked formally, but are assessed during consultation, often hand in hand with the consent process. This is achieved by asking for the patient to give feedback, or summarize discussions. Care must be taken to distinguish true understanding from learned behaviour or social conditioning, where a person has an ability to respond in line with cultural expectations, but may not have understanding of meaning. This behaviour is built through a lifetime of experience within a particular societal influence, and may still persist even though cognitive ability is in decline.
Signs which may indicate that the patient lacks capacity include:
It may be necessary to arrange a further appointment to assess if information has been retained. Even if patients have been unable to remember the actual decision, if they consistently arrive at the same decision on different occasions, this could mean that they are weighing up and understanding the information to arrive at their decision. Discussion with family or carers can aid and provide insight into capacity assessment. Important information may be gleaned by the wider dental team when dental nurses and receptionist witness interactions between patients and their companions.
More formal assessments of capacity include tools such as the Mini-Mental State Examination5 or General Practitioner Assessment of Cognition.6 There are also more recently developed, validated systems such as the Aid to Capacity Evaluation (ACE)7 and the Assessment of Capacity for Everyday Decision-making (ACED)8 which may be used in the medical setting.
Factors affecting capacity
Some patients will clearly lack capacity for all decisions on a permanent basis, such as a patient with profound learning disability. However, in some cases capacity can fluctuate, for example dementia (good and bad days) or be temporary, such as following a traumatic head injury. Capacity may be dependent on the complexity of the decision, and the level of understanding the patient is capable of achieving and demonstrating. Table 3 shows some common causes for lack of capacity. Where lack of capacity is temporary or fluctuates, delaying that decision until capacity is regained should be considered. This is particularly important in irreversible decisions, or those with significant consequences to the patient. In challenging cases it may be necessary to seek a second opinion or wider consultation.
| Temporary | Permanent |
|---|---|
| Intoxication, substance misuse | Learning disability |
| Coma | Progressive or permanent neurological conditions |
| Mental health crisis | Dementia |
| Head injury | Mental health conditions |
| Significant pain, distressing symptoms, significant anxiety | Cognitive impairment |
Dental Scenarios – assessing capacity
The following scenarios are summarized from Part 1 as they are revisited later in this article
In Case Scenario 1, SB has an impairment in the functioning of her mind –– her mental health condition is not well controlled, and she is unable to weigh up the consequences of extraction of the anterior tooth. She therefore lacks capacity at this time. Capacity may be regained in future when her pain is controlled, sleep and social patterns restored and mental health condition stabilized. Without careful questioning and insight into her current mental health situation, which reveals a lack of capacity at this time, her request for extraction could be seen as valid, albeit perhaps unwise.
In Case Scenario 2, JB does have an impairment of the functioning of his mind, but he is able to understand, retain and weigh up information, and communicate this decision. He therefore has capacity for this decision.
Case Scenario 1
A 34-year-old female (SB).
Legislation and terminology across the UK
Across the UK, there are several terms and phrases in use. The reader should be familiar with these, as patients or their families may have been assigned particular roles and responsibilities. It is important that the person is permitted to make only those specific decisions for which he/she is authorized.
Case Scenario 2
A 34-year-old male (JB)
Lasting Power of Attorney (LPA)
In England and Wales, under the Mental Capacity Act 20051/Northern Ireland Mental Capacity Bill 2016,4 a person can nominate another individual to act on his/her behalf should capacity be lost in the future. Lasting Power of Attorney is registered with the Office of the Public Guardian.9 The person must be over 18 years of age and must have capacity to nominate at the time, so this would not usually apply to lifelong lack of capacity. The LPA can only make decisions for the person when he/she lacks capacity for that decision, and must follow the principles of the Mental Capacity Act. This means abiding by any advance directives, and acting in the person's best interests. If a healthcare professional does not feel the LPA is acting in the person's best interests, he/she may apply to the Court of Protection for further guidance. A LPA is not able to make decisions for a person detained under the Mental Health Act (1983).
There are two types of Lasting Power of Attorney:
Enduring Power of Attorney
In England and Wales prior to 2007, a person could be nominated as an Enduring Power of Attorney, which enabled decisions to be taken relating to property and financial affairs. These orders may still be in place, but it is important to appreciate that they do not cover welfare decisions.
In Northern Ireland, Enduring Power of Attorney is still current, and needs to be registered with the High Court when capacity is lost. The Office of Care and Protection10 can appoint a ‘Controller’ when a person no longer has capacity but does not have an Enduring Power of Attorney in place, however, his/her responsibilities are financial, not health and welfare.
Court Appointed Deputy
In England and Wales, a person can apply to be appointed by the Court to act in the best interests of someone lacking capacity, as a Court Appointed Deputy. This could occur where a person does not have capacity to nominate a LPA, for example in later stages of dementia or following a traumatic brain injury.
Adults with Incapacity (Scotland) Act 20003
Under this Act, people able to make decisions for someone lacking capacity include the following.
Proxy
A general term for anyone authorized to act on someone else's behalf should he/she lose capacity to make a particular decision.
Power of Attorney
People can nominate someone they trust to act on their behalf by setting up a Continuing or Commencing Power of Attorney (financial), or a specific Welfare Power of Attorney with the Office of the Public Guardian (Scotland).11 However, as in England and Wales, this only becomes active when a person does not have capacity for that decision, and there are certain situations where the Continuing Power of Attorney is not authorized to make decisions.
Guardianship
The Sheriff court can appoint a guardian to act in matters of finance, welfare, health or a combination of these. This is more likely where the person has already lost capacity or has never had capacity for these types of decisions.
Certificate of Incapacity
Where a person lacks capacity, and has no other proxy with whom to consult, the AWI (Scotland) allows an appropriately trained and qualified practitioner to issue a ‘section 47’ Certificate of Incapacity.12 It is necessary for a dental practitioner to have attended a registered course to obtain the appropriate documentation to be authorized to issue a Certificate of Incapacity. The certificate pertains to a particular decision and for a prescribed period of time – the minimum required to enable the contemplated intervention to be carried out, up to a maximum of 3 years.
Best interests decision
Where an adult is deemed to lack capacity for a decision, usually treatment is then provided in the best interests of the patient. Many factors must be considered in these circumstances (Table 4). As the decision-maker, the dentist must act in accordance with the ethos of legislation, and practical discussions of these points can be found in the Code of Practice13 and Guidance Notes.14
| Family and friends | Relationship with the patient, frequency of communication, if they can be contacted |
| Previous wishes and beliefs | Social, medical and dental history can give insight to beliefs prior to loss of capacity. Family and friends may also provide useful information |
| Proposed treatment | Nature of interventions, irreversible interventions, the level of risk, decisions to monitor rather than provide active treatment |
| Urgency | Pain, infection, detrimental effect on quality of life may indicate treatment is provided without delay |
The patient's previous wishes, beliefs and values must be considered. Clues to these previous behaviours may be evident from dental history, for example, types of dental treatment previously carried out such as edentulism compared with an implant-restored dentition. Medical records may indicate a health-seeking behaviour, for example regular attendance for routine screenings and immunizations compared with repeated failed healthcare appointments.
The nature of the proposed treatment must be considered, including risks and benefits and potential complications. It would not usually be necessary to consult relatives or friends prior to dental examination, however, should capacity to consent be lacking and operative treatment is indicated, a discussion of treatment and modalities, such as local anaesthesia, conscious sedation, general anaesthesia, may be required with those close to the patient to determine the best option in the individual circumstances. If a patient is in pain, has an infection or a condition where there is urgency to provide care, this can be carried out in the patient's best interests and should not be delayed due to difficulties in contacting family or friends.
It may be helpful to discuss care with those who know the patient well, and establishing which relationships are important to the patient at that time. A close friend with daily visits over many years may be in a position to advise, whereas a relative who has not had any contact for decades may not know the patient as well. Discussions with appropriate people can be difficult and must be handled with sensitivity. Excellent communication skills are vital in these circumstances, and it must be remembered that a duty of care is to be shown to the patient. In England and Wales, the Special Care Dentistry Commissioning guide2 suggests a level 3 practitioner may be involved where a non-intervention plan is proposed, or there are complicating factors at this stage.
It is the responsibility of the healthcare professional to discuss the proposed treatment with those close to the patient and to consult/inform any appropriate healthcare professionals who are responsible for the health and social care of the patient. Those close to the patient could include next of kin, close friends and non-paid carers. Discussion can be in person, by telephone or letter, but must be fully documented. It is important to be clear during these discussions that we are not seeking ‘consent’ from the person close to the patient; it is a process of discussion to determine what is in his/her best interests.
Where a person is authorized to act on a patient's behalf, a copy of the legal document pertaining to the authority should be retained in the clinical notes.
Dental Scenarios – best interest decisions
In Case Scenario 1, SB's values and previous wishes are demonstrated in her fixed prosthodontic work to maintain her dentition. This gives weight to the view that the request for an upper incisor extraction represents a temporary loss of capacity rather than an unwise decision in a patient with capacity. Delaying the decision and irreversible treatment until mental health has improved would be an appropriate approach.
In Case Scenario 3, FR lacks capacity as she has impairment in the function of her mind, and is unable to communicate her decision. She is unlikely to regain this due to the progressive nature of her dementia.
The dentist makes a best interest decision to attempt construction of replacement dentures, because she is having difficulty at mealtimes and her speech is affected when the dentures lose retention. The dentist fully discusses (and documents) with the patient and family that particular stages may be difficult, and if FR becomes distressed, treatment will be discontinued.
When we visit FR, the likely distress of denture construction, along with her compromised airway, mean that the procedure does carry risk. FR's appearance is important to her family, but there is unlikely to be a functional benefit to her. The daughter does not have a welfare LPA; therefore the dentist must make a best interest decision. Excellent communication skills are essential between the dentist, carers, nursing staff and family, with the aim of reaching agreement on the best course of action for the individual patient. In this situation this may mean waiting until FR is more able to accept treatment without distress. Dilemmas of this type are often experienced by the dental team, and further examples may be found in a recently produced Dementia Toolkit.15
Case Scenario 1 – SB revisited
Case Scenario 3
An 83-year-old female (FR)
Case Scenario 3 – FR revisited
FR has been admitted to hospital following a fall
Unbefriended people
Where there is no one with whom to consult, other than paid carers, the situation differs across the UK. In Scotland, the AWI (2000) part 53 confers a general authority to treat where a Certificate of Incapacity has been issued for that time period and specific treatment. In England and Wales, where serious medical treatment is proposed, an advocate is appointed.
Independent Mental Capacity Advocate
The Mental Capacity Act 2005 created the role of Independent Mental Capacity Advocate (IMCA). The role of an IMCA is to support and safeguard the rights of the individual deemed to lack capacity. This often pertains to change in accommodation or provision (or withholding) of serious medical treatment (see below). The referring practitioner should be familiar with the local arrangements for referral for Advocacy Services in their area.
IMCA are trained and employed by independent organizations, but contracted by health services at a local level. IMCAs will usually arrange to meet the patient in order to consider whether the proposed treatment is in his/her best interests, as a family member or friend would. A report is then produced to support and guide the best interests decision by the clinician. Similar roles are set out in the Mental Capacity Bill 2016 in Northern Ireland.4
What is serious medical treatment?
Definitions of this are available through the MCA Toolkit16 or AWI guidance notes.14 Where there is a fine balance between the benefits of treatment, against the risks or likely consequences, an IMCA may be instructed to assist with the decision-making process. This may also occur where there is a close comparison between different treatment options, or the treatment proposed would have serious consequences for the patient. The modality of treatment should also be considered, particularly when involving general anaesthesia or conscious sedation. The consequences of secure transport, clinical holding, hospital admission, and anticipated distress may also lead the intervention to be classified as serious medical treatment. The risk of complications, for example medication-related osteonecrosis following dental extraction, or medically unstable patients requiring sedation, should also be considered. Where it is unclear if the treatment proposed constitutes serious medical treatment, a second opinion may be requested to determine how to proceed in the patient's best interests.
Formal best interest meetings
Formal meetings are held in complex cases, where the risks and benefits of the proposed intervention are finely balanced, comprehensive discussion of treatment options is required, or there is disagreement between those close to the patient and the decision-makers.
The meeting is usually chaired by the decision-maker. Views and opinions from differing perspectives can be discussed face-to-face, with the aim of reaching an agreement which the decision-maker can then act upon. There may be as few or as many people as are required to inform a decision on behalf of the patient (Table 5), and comprehensive notes of the meeting retained and shared appropriately. If it is not possible to reach a consensus, then the meeting can be rescheduled following a period of reflection, or further information may be useful, such as further medical examination/second opinions. However, the decision-maker does not need unanimous agreement. The ultimate recourse is to the Court of Protection (England) or Court of Session (Scotland).
| People who may be involved to inform a decision on behalf of the patient | |
|---|---|
|
|
|
Urgency of treatment
When treatment is required urgently, such as life-threatening infections/severe pain, clinicians can directly act in the patient's best interests once the patient is assessed as lacking capacity. However, the process and the principles outlined above should be followed after treatment and fully documented.
In Case Scenario 2, JB is now in a different situation. He still has impairment in the functioning of his mind, but is still able to communicate his decision. However, he is not able to weigh up the risks of GA fully, or the risks of doing nothing. He therefore does not have capacity to consent for this decision. Treatment is carried out in his best interests; the urgency of the situation means treatment can go ahead without discussion with family.
Deprivation of Liberty Safeguards (DoLS)
Deprivation of Liberty Safeguards (DoLS), previously known as ‘Bournewood Safeguards’ were introduced as an amendment to MCA in 2009.17 DoLS can be defined as the: ‘procedure prescribed in law when it is necessary to deprive of their liberty a resident or patient who lacks capacity to consent to their care and treatment in order to keep them safe from harm’.18
This part of the Act recognizes certain situations where a decision made in a patient's best interests, even the least restrictive option, may deprive him/her of fundamental freedoms, but outwith the Mental Health Act (MHA).19 Such decisions may include physical or chemical restraint, prolonged stays in hospital or limiting social contacts. These deprivations should be in the patient's best interests, and least restrictive. Every effort should be made to minimize such deprivations, and decisions should be regularly reviewed. Dental interventions involving Deprivation of Liberty would usually be managed by a specialist or consultant in SCD following multidisciplinary consultation. A request for a DoLS assessment is made wherever Deprivation of Liberty may occur, and assessments are often carried out by specifically trained providers, and authorized by statutory bodies such as NHS Trust Boards.
Case Scenario 2 – JB revisited
Conclusion
Anyone who works with, cares for, or makes decisions for an adult deemed to lack capacity should be familiar with the relevant legislation relating to consent and capacity in his/her scope of practice.
The dental team often encounters patients who lack capacity, be it on a temporary or permanent basis. It is important to identify where capacity is lacking, and that action is taken accordingly, including referral to more experienced practitioners where appropriate. Adults lacking capacity may be supported in their decisions by a nominated person, and it is the responsibility of clinicians to ensure that they are also acting in the person's best interests. When the dentist becomes decision-maker for a patient, there must be full understanding of the legal, ethical and moral framework within which action is taken. Communication and multidisciplinary working enables a holistic view of the patient, and can help dentists make the right decision, at the right time.