A surgeon refuses to perform emergency surgery on a confused elderly lady without consent. She has no known relatives – can anyone else sign a consent form?
The Mental Capacity Act 2005 (which came fully into force in October 2007) now provides a statutory framework for making decisions on behalf of adults who are mentally incapacitated.
If an adult is mentally incapable of making her or his own decision (and has not drawn up a living will or advance decision, or appointed a person to make decisions under a lasting power of attorney that covers the circumstances that have arisen), there is now a statutory duty for others to make decisions and act in the best interests of that person.
In this situation, the patient is incapable of making a decision on emergency surgery. An operation would appear to be in the patient’s best interests but there appear to be
no persons who can be consulted about her best interests.
A check should be made to see if she was carrying an advance decision by which she refused any treatment or blood transfusion. In the absence of such a request, the surgeon should proceed to operate in her best interests.
No one can sign the consent form but a record should be made of the circumstances and the fact that surgery was deemed to be in her best interests. Since there are no relatives to be consulted, if time permits, an independent mental capacity advocate could be appointed to provide a report on what is in the patient’s best interests as defined under the act. However, under Section 37(4) in an emergency situation where treatment needs to be provided as a matter of urgency, it may be provided even though the NHS body has not been able to comply with the requirement to appoint an independent mental capacity advocate.
A code of practice on the Mental Capacity Act has been prepared and is available on the Ministry of Justice website (justice.gov.uk). This should be available for all health professionals to consult.
Bridgit Dimond, MA, LLB, DASA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd