Author: Admin

The Assisted Decision Making (Capacity) Act 2015 (‘the Act’), was enacted in December 2015 but most of its provisions have not yet, one year later, come into force.  Once in force, the Act will repeal the Lunacy Regulations (Ireland) Act, 1871 and will have far reaching, and arguably life changing, consequences for persons with impaired capacity.  What does it mean though, in practical terms for medical practitioners?

 

Under the Act the capacity of a relevant person (as defined in s2 of the Act) shall be construed functionally and ‘shall be assessed on the basis of [their] ability to understand, at the time the decision is to be made, the nature and consequences of the decision to be made by [them] in the context of the available choices at that time (s3(1) of the Act). The Act now provides, on a statutory footing (s8 of the Act), the long established common law presumption, that a person has capacity unless the contrary is shown, and the burden of proof (on the balance of probabilities) lies with the person asserting a lack of capacity.  Pursuant to Section 3 of the Act a person is shown to lack capacity to make a decision if they are unable:

 

1. to understand the information relevant to the decision;
2. to retain that information long enough to make a voluntary choice;
3. to use or weigh that information as part of the process of making the decision; or
4. to communicate [their] decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.

 

This language all sounds rather familiar, doesn’t it?  It should; the functional approach to assessing capacity has been a fixture in the Medical Council’s Guide to Professional Conduct and Ethics (7th and 8th Edition) as well as the HSE’s National Consent Policy (2013) since the High Court in 2008 [Fitzpatrick v K(2)] recognised the Law Reform Commission’s recommendation that capacity ‘will be understood in terms of an adult’s cognitive ability to understand the nature and consequences of its decision in the context of available choices at the time the decision is made’.

 

The Act then, does not re-invent the wheel, as far as ‘capacity’ and mental practitioners are concerned.  What it does do however, is change what was a moral or ethical guideline into a statutory and legal obligation, on both medical and legal practitioners alike.  

 

Although the Act imposes a legal obligation on practitioners to assess capacity functionally, the Act does not provide a statutory ‘functional test’ for practitioners to follow; but perhaps that is the very point.  

 

Traditional medical or ‘status’ approach assessments were designed to assess a person’s capacity globally.  By using tools such as the Mini Mental State Examination, a practitioner could tick boxes on a form and thereby calculate a result which deemed whether a person had passed or failed; had capacity or not; had capacity for everything, or nothing at all.  

 

Functional assessments however, require an issue and time specific approach.  A person may not have capacity to make a specific decision in the moment, but they may have that capacity later that afternoon or the following week.  If a person is being assessed for the capacity to execute an Enduring Power of Attorney (‘EPA’) for example, the assessment should be very much geared towards that, and only that.  General questions on daily life may give a practitioner an overall picture of the person they are dealing with but a person’s belief that Charles Haughey is still Taoiseach can no longer be seen as indicative of whether they understand the nature of an EPA, or the power the donor is granting to their chosen Attorney(s) or the consequences for the donor, of losing their mental faculties, should the EPA be executed.  

 

It is this ‘à la carte’ approach to capacity, that practitioners will be legally required to adopt once the act comes into force.  The black or white, ‘yes’ or ‘no’ view of capacity will be a thing of the past.

 

It should be remembered that the assessment will start from the position that the person has capacity (as per the statutory presumption).  However, it has been considered as inappropriate (by the Court of Protection of England and Wales in CC v KK and STCC [2012]), when assessing capacity, to simply start with a blank canvas; a person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed.

 

A pitfall practitioners should be wary of, is falling into an ‘outcome based’ approach to assessing capacity, where a person is deemed not to have capacity on the basis that the assessing practitioner does not agree with the decision reached after the options have been purportedly weighed up and processed by the assessed person.  It is the ability to understand and weigh up that information that is ultimately being assessed, not the quality of the subsequent decision.  An unwise decision following consideration of the options presented, does not equate to a lack of capacity.  

 

Perhaps the High Court in England, in the KK case, summarised the dilemma best when stating ‘in cases of vulnerable adults, there is a risk that all professionals involved in treating and helping that person – including, of course, a Judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult, and thus, in certain circumstances, fail to carry out an assessment that is detached and objective’.

 

The role of the professional practitioner (medical and legal) will soon change from capacity assessor to capacity enabler, and once the Act comes into force the obligations of the practitioner will also shift from ethical to legal. The consequences of breaching those obligations remain to be seen. The HSE has set up a Decision-Making Steering Group, which one would hope, will produce detailed guidelines to assist practitioners in complying with their upcoming, legal obligations; or at the very least the Steering Group should have the capacity to do so.

 

John Quinn

At a time when complaints against doctors to the Medical Council are on the increase, it is important to consider some fundamental flaws in the complaints system introduced by the Medical Practitioners Act 2007 and how these flaws are giving rise to a widespread perception among doctors that the system is often unfair and in need of radical corrective surgery.

 

The legal case that highlighted, more than any other case, the flaws in the complaints system is the case taken in 2012 by Professor Martin Corbally against a decision of the Medical Council to “admonish” him for “poor professional performance”.  The case arose from a complaint that a minor surgical procedure had been carried out on the incorrect frenula by Professor Corbally’s specialist surgical registrar.

 

In the Supreme Court, the late Mr. Justice Adrian Hardiman, in a judgment that was scathingly critical of the Medical Council’s handling of the matter, put it in context thus:

 

“Any person, certainly any medical person, reading the note, and being aware that there is, anatomically, no “upper lingual frenulum” would be aware that a slight error had been made, of the sort that we all are accustomed to hearing every day in speech and to correcting mentally, or by enquiry.  Thus, at the simplest level, a person well known to the speaker may be addressed by an incorrect name.  This is often called a “slip of the tongue”.  Professor Corbally made a slip of the pen….”.

 

There is no doubt that Professor Corbally was subjected to a grave injustice.  The minor error in his outpatient note which was subsequently corrected by him on the admissions card and found by both the High Court and Supreme Court not to have been the cause of the incorrect minor surgical procedure carried out by his registrar, gave rise to a series of events over a period of four years which can be best described as Kafka-esque – the subsequent saga involved an enquiry by the Preliminary Proceedings Committee – followed by a full public enquiry of the Fitness to Practise Committee – followed by a public “admonishment” by the Medical Council – followed by a public Judicial Review Hearing by the High Court and ending with a public appeal by the Medical Council to the Supreme Court. 

 

In the full public glare, Professor Corbally was subjected to extensive publicity some of which was categorised by the Supreme Court as “lacking in fairness and moderation”.

 

Mr. Justice Hardiman said in his judgment in the Supreme Court that:

 

“I do not think it is proper to subject any person to what happened to Professor Corbally except in relation to a serious matter.  Moreover, if a failing does not need to be “serious” then a medical practitioner might be treated as Professor Corbally has been in respect of a non-serious or even trivial once-off failing.  I do not consider this to be fair or just.  More specifically I do not consider it to be an adequate vindication of the constitutional rights of a person in Professor Corbally’s position, especially his right to his good name and his right to earn a livelihood.  Still more to the point, I do not consider it to be what the Oireachtas expressed in enacting the Medical Practitioners Act 2007”.

 

In short, the Medical Council got it badly wrong.  Its ineptitude in dealing with the complaint was exceeded only by its arrogance in failing to make a full and public apology to Professor Corbally after the Supreme Court fully exposed the Medical Council’s mishandling of the complaint.  As members of the Medical Council and its Committees are protected against legal suit for anything done in the course of their duties, Professor Corbally has no legal remedy against the Council. 

 

It is a matter of great concern that the flaws in the complaints system exposed by Professor Corbally’s case have not yet been addressed by the Oireachtas.  The following matters need to be addressed with a degree of urgency lest the appalling treatment to which Professor Corbally was subjected, be repeated:

 

A distinction needs to be made in the legislation between the processing of complaints of a “serious” nature, and complaints of a “non-serious” nature.  Complaints of a “non-serious” nature should not be heard in public.  Complaints of a serious nature should only be heard in public if the Medical Council has first determined that a non-public hearing would undermine its statutory objective of protecting the public;

 

The Medical Council should be mandated in the legislation to seek to resolve complaints, in the first instance, in a non-adversarial manner whether by mediation, collaboration or otherwise – except where to do so would undermine its statutory objective of protecting the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence amongst doctors.

 

Doctors complained against should have the right to appeal to the High Court against any decision of the Medical Council imposing a sanction.  Under the existing legislation, a right of appeal does not exist against a decision imposing a sanction of “advice”, “admonishment” or “censure”.  The absence of a right to appeal in these instances where the imposition of a sanction, albeit at the lower end of the scale, can have a devastating effect on a medical practitioner’s reputation, especially in relation to complaints that are heard in public, places a serious question mark over the constitutionality of the sections of the Medical Practitioners Act that deny the right of appeal.

 

The lay majority rule for composition of FPC enquiries should be repealed.  Lay people are not well placed to make quasi-judicial deliberations on matters that can ruin the reputation and livelihood of medical practitioners.

 

At least one suitably qualified lawyer should sit as a member of all FPC enquiries. If the FPC in Professor Corbally’s case had accepted the advice of its own legal counsel, the complaint would not have progressed any further.  Under the existing legislation, the FPC is entitled to ignore the advice of its own legal counsel. 
In relation to complaints that are heard in public a set of legally binding rules should be introduced into the system in relation to the reporting of FPC hearings.  The rules should be supported by an appropriate enforcement and sanctions regime to ensure compliance. 

 

Felix McTiernan