Background
Lasting power of attorney
A Lasting Power of Attorney (LPA) is someone appointed by the patient to make decisions on their behalf when the patient no longer has the capacity to do so for themselves. The authority the LPA has depends on the type of LPA, such as an LPA of Health and Welfare or an LPA of Property and Finances. An LPA in Health and Welfare can make decisions including refusing treatment, but cannot demand treatment. They can refuse life-saving treatment, however, this requires a separate, witnessed signature.
Advance decision
An Advance Decision is a legally binding document that allows a person to refuse a specific intervention in a specific circumstance in advance of losing capacity. It must be set out clearly in writing, signed, and witnessed. And like the LPA, it cannot demand treatment.
What happens if someone has both?
If a person has both an advance decision and LPA, the most recently signed one is usually considered, provided both are valid.
Specific circumstances
Decisions made only apply to specific interventions in specific circumstances. An advance decision refusing one intervention does not mean refusal of another. For example, a person refuses life-prolonging treatment in the event they lose capacity. If they become unwell before this, then life-prolonging treatment is given.
Court of Protection and deputies
The Court of Protection can make decisions on behalf of someone without capacity or it can appoint Court-appointed deputies to do so. Similar to an LPA, Court-appointed deputies can make decisions on behalf of a patient without capacity, but cannot refuse life-saving treatment.
Office of the Public Guardian
Disagreements between LPAs and healthcare teams, family members, friends etc. can be referred to the Office of the Public Guardian, which is responsible for registering and monitoring the actions of LPAs and Court-appointed deputies.
Independent mental capacity advocates
Independent mental capacity advocates (IMCAs) can help with expressing opinions on a person’s beliefs and values to help decision-making in scenarios where the person without capacity has no representatives (e.g. family, friends etc.). They are generally involved in serious treatment decisions.
Advance statements
Advance statements are different from advance decisions and are not legally binding. Instead, they document the person’s preferences, wishes, and beliefs regarding their care and should still carefully be considered when deciding on a person’s behalf.
Assessing capacity
Capacity assessment involves a two-step process:
- Is there any impairment/disturbance of the mind? Is there a problem that affects mental functioning, such as dementia, delirium, psychiatric conditions, or unconsciousness?
- Does this disturbance impact decision-making? Using ‘UR With Capacity’ can help:
- Understanding: can they understand intervention details, including what it is, its indications, risks, benefits, and the risks of not having it done?
- Retaining information: can they hold on to the information long enough to make a decision?
- Weighing up information: can they weigh up the pros and cons to make a decision?
- Communicating the decision: are they able to communicate their decision?
Best interests
If a person lacks capacity, then decisions are made on their behalf in their best interests. This should be the least restrictive option and some factors that should be taken into account when making these decisions include:
- Legal representatives: do they have a Lasting Power of Attorney (LPA) in health or an Advance Decision?
- Past and present wishes: have they mentioned anything in the past about similar situations?
- Input from close people: what are the opinions of their family, friends, carers etc.? – they will know the patient better. However, they do not make the final decision, only their views are factored in.
- Need for advocacy: if they have no other representatives (e.g. family and friends), they may need an Independent Mental Capacity Advocate.
OSCE Tips and Scenarios
Possible scenarios
Some scenarios include:
- A patient books an appointment to discuss their future care preferences.
- A patient has recently undergone tests for/has been diagnosed with a condition that could impair their capacity in the future (e.g. dementia).
- A relative disagrees with a patient’s healthcare decision.
- A patient/relative insists on a certain treatment in the future.
Tips for the station
Never make assumptions: having dementia or any other condition that could predispose to lacking capacity does not mean they lack capacity. You must assess capacity each time for every decision, as it is decision-specific.
Use a systematic approach: follow a structured approach when assessing a person’s capacity, working through each principle discussed above. The examiner may ask you to present your capacity assessment, and doing this systematically shows your understanding of the process and ensures nothing is missed. For example “I feel this patient lacks capacity because they cannot understand the information, retain it long enough to make a decision, and cannot weigh up its pros and cons. Even though they can communicate their decision, they do not have capacity as all of these have not been met”. Also re-iterate that you would assess capacity for each intervention separately, as capacity is decision-specific.
Be clear about serious complications and death, don’t beat around the bush: you must actively explore their understanding of serious and life-threatening risks including death. During the station, these phrases, including saying ‘death’ outright, must be said. Being unclear about this may instantly fail you. Discussing death can be awkward or difficult to articulate nicely, however, it is something that must be discussed.
Know what you would do next and the limits of your competence: don’t offer something you are not able to do, and when discussing the next steps, always remember whether you need to discuss this with a senior or another team.
Mistakes people make
Some mistakes made include:
- Not exploring patient perspectives: failing to explore the background leading up to now, the patient’s viewpoints and concerns, and not acknowledging these.
- Not exploring patient expectations and negotiating: failing to explore the patient’s expectations and preferences, and failing to negotiate and suggest a plan of action.
- Lack of clear consultation closure: failing to conclude the consultation with a clear plan moving forward and leaving patients uncertain about the next steps.
- Monologuing and/or jargon: engaging in one-sided communication rather than facilitating dialogue and discussion with understandable language.
- Inadequate responses to questions: struggling to confidently and accurately questions that arise and failing to address concerns, leading to confusion and dissatisfaction.
- Failing to mention death: explaining that a possible decision carries the risk of death can be tricky, however, it is essential the patient understands this risk in scenarios where it may be a possibility and must be said. Do not paraphrase this (e.g. ‘pass away’) and be clear, using the word ‘death’.
- A lack of knowledge and an over-reliance on seniors and leaflets: depending excessively on senior advice or leaflets to compensate for knowledge gaps and underestimating their responsibility in patient care.
- Not understanding professional limits: offering to perform tasks beyond their grade level and not knowing the limits of their competence.
Key Communication Skills
Never launch into explaining straight away: keep things patient-centred and use ideas, concerns, and expectations (ICE) throughout. Try to avoid collecting them all at the start and instead, ask about them and address them as they arise.
Chunk and check understanding: after each segment of information, ask if they understand, such as by asking “Does that make sense?” and “Is there anything else you’d like to ask about that part?”.
Avoid all medical jargon – explain everything in words that the general public would understand (e.g. saying an ‘underactive thyroid’ instead of ‘hypothyroidism’).
Be honest, clear, and sensitive, and never beat around the bush: everything the patient needs to know must be said, however, this should be done sensitively. This includes explaining the risks of serious or life-threatening complications and death and actively saying these words.
Empathy
Empathise appropriately and put a positive spin where possible: reflect the patient’s emotions and give reassurance, but do not give false reassurance or promise something you can’t guarantee. Also, reassure the patient that you’ll try your best to help them. For example, if a patient says they are worried about their diagnosis, you could say “It is natural to be worried about a new diagnosis, but we are here to help and address any concerns you might have”.
Acknowledge their feelings but avoid collusion: for example, if a patient is angry towards a colleague, you could say “I can how this situation can make you feel that way”. Avoid taking sides.
Consider the need for a breaking bad news approach: always explore the events leading up to the current situation to gauge what the patient knows and has experienced before explaining anything. For example, a patient has had a series of tests for possible cancer and is anxious about the result but does not know why they were given the tests.
Potential Ideas, Concerns, and Expectations
Some ideas, concerns, and expectations include:
- “How quickly am I going to get worse?”
- “What happens if I can’t make decisions by myself?”
- “How do I know I will be treated the way I would want to?”
- “What if there is a treatment I don’t want later?”
- “But I’m their son/daughter, why can’t I overturn this decision?”
Approach
Introduction
- Wash hands and introduce yourself: your full name and role
- Confirm their identity: their full name, date of birth, and preferred name.
- Explain the purpose of the conversation and gain consent: “I understand you’d like to discuss your future care, is that correct?”
Patient perspective
Explore their perspective:
- What has happened so far?
- How are they feeling now?
Ask about their understanding and ICE:
- Understanding – what is their understanding of what’s going on?
- Ideas and concerns – is there anything they are worried about?
- Expectations – what would they like from this consultation?
- Clarify the direction of the conversation – “So you would like to discuss your future care, is that alright?”
Background
Explore their background:
- Events leading up to now: what has happened so far?
- Their current feelings: how are they feeling now?
Explore their understanding and ICE:
- Understanding: what is their understanding of what’s going on?
- Ideas and concerns: is there anything they are worried about?
- Expectations: what would they like from this consultation?
- Confirm the direction of the conversation: “So you would like to discuss what options there are in the future if you are not able to make decisions for yourself, is that correct?”
Consider breaking bad news
You may need to break bad news. For example, the scenario may involve a patient who has had some tests for a condition that could impair capacity in the future.
After breaking bad news, sensitively explain how this could cause problems with their memory, planning, and organisation, which could affect their abilities to make decisions in the future. Remember to explain what support there is.
Then ICE again. The patient may ask what is available in the future if they become unable to make their own decisions.
Explanation and discussion
Explore their understanding and offer to explain, tailored to their ICE and understanding:
- Their reasons: is there something they are worried about if they lose capacity?
- Preferences: what would they not want?
- Briefly introduce the options and ask what they would like to know more about:
- Lasting power of attorney (LPA): appoint someone to make decisions on their behalf if they cannot make their own decisions.
- An advance decision: specific instructions on what they would not want if they lost capacity. This is more specific and restrictive.
Explaining a Lasting Power of Attorney (LPA)
If they’d like to know more about an LPA:
- What an LPA is: the patient appoints someone to make decisions on their behalf if they become unable to make their own decisions.
- Common scenarios: they are commonly used to refuse treatment such as cardiopulmonary resuscitation and feeding tubes.
- Who this is: they can nominate a single person or a group to decide and can choose who to allocate decisions to different people.
- When it applies: it applies when the person can no longer make their own decisions. Situations where the appointed person can make decisions need to be specified.
- What powers the LPA has: they depend on whether the person is an LPA of health and welfare or an LPA of property and finances:
- It cannot be used to request treatment: they can only deny it
- What makes an LPA valid:
- Age: appointment must be made by someone >18 years old
- Signature: they need to sign an LPA in health and welfare document and/or a property and finance one.
- Specific circumstances: they need to explicitly state who can make what decision and in which situation.
- Explicit statement for life-saving treatment: if they want the LPA to refuse life-saving treatment, this must be explicitly stated separately.
- Witness and certification: its signing needs to be witnessed by a GP/solicitor and then registered with the Office of Public Guardian.
- Sources of more information: let them know that they can look at the government website or seek advice from a solicitor for more information.
- Do they have anyone in mind now?
Explaining an Advance Decision
If they’d like to know more about an Advance Decision:
- What it is: instructions for situations where they would not like treatment
- Common scenarios: commonly used to refuse treatment such as cardiopulmonary resuscitation and feeding tubes.
- When it applies: it applies when the person can no longer make their own decisions and if it is valid, making it legally binding. Situations where the appointed person can make decisions need to be specified.
- It cannot be used to request treatment: it can only deny it.
- What makes an Advance Decision valid:
- Age: it must be made by someone >18 years old
- They have capacity, no coercion, and have been adequately informed at the time of the Advance Decision’s production.
- Written specific circumstances: they need to explicitly state what situation their treatment refusal applies to. It must also be in writing.
- Explicit statement for life-saving treatment: if they want to refuse life-saving treatment, this must be explicitly stated separately (i.e. say ‘even if my life is at risk’).
- Signed and witnessed: the witness must be nominated by the person and also sign that they have witnessed the person signing the Advance Decision and this must be free from coercion.
Explaining capacity
You may need to explain what capacity is:
- Capacity requires all of the following:
- Understanding: the ability to understand information related to a decision, including its reasons, risks, benefits, complications (including death), the risks of not doing so, and alternatives.
- Retention: the ability to hold on to the relevant information to make the decision.
- Weighing up: the ability to weigh up the pros and cons of the decision
- Communication: the ability to communicate the decision
- Causes of loss: people can lose capacity as a result of a condition affecting their mental health, and this can be permanent or temporary.
- Decision-specific: not having capacity in one situation does not mean the person lacks it in another.
Further questions
Other questions may include:
- The person has no Advance Decision or LPA: a decision is made in their best interests by the medical team based on the person’s beliefs, views, values, and what is least restrictive.
- The person has both an advance decision and LPA: the more recently made decision takes priority as long as the LPA has powers to make decisions in the scenarios specified and both are valid.
Summary and concluding
Summarise and clarify what has been discussed:
- Confirm what has been said: “So to summarise, we have discussed what a Lasting Power of Attorney is and what they can do. You’d like to have some time to think about this before deciding on anything. Is that correct?”
- Reassure: that the patient will still be given as much support as possible (e.g. pain relief, unless they refuse that as well).
Check understanding and ICE:
- ICE: has this been addressed/acknowledged?
- Invite them to ask questions: do they have any?
When finishing:
- Ensure their follow-up is in place: make sure their current situation is being dealt with if relevant, such as follow-up from old-age psychiatry.
- Senior discussion: inform them that you will have to discuss this with a senior first.
- Offer leaflets, early follow-up, and a future contact: such as yourself or another relevant team member.
- Thank the patient and document the discussion.
