Podcast: Walking the tightrope – patient capacity, best interests, and disclosure
We recently hosted a small, in person seminar in our Newcastle office, looking at the topics of patient capacity and best interests when it comes to medical treatment, and the importance of accurate disclosure in inquests and civil claims. Speakers, Stephen Maratos and Stephen Evans sat down afterwards to record a podcast, summarising the main points of their presentation.
Listen to the episode:
If you have any questions or concerns about anything discussed in this episode, please contact us.
Episode summary
00:18 – Introduction
00:32 – What is patient capacity?
03:52 – When should a capacity assessment be carried out?
05:37 – Best interests and patient decisions
14:56 – Disclosure in the coronial process
25:07 – Disclosure in civil claims
Episode transcript
Stephen Maratos 00:18
Stephen Maratos here, healthcare litigation partner, and I’ve got Stephen Evans with me, health advisory partner. Hi, Stephen.
Stephen Evans 00:26
Hi Stephen, uh, that might get confusing, but we’ll carry on!
Stephen Maratos 00:32
Exactly, we’ll get there, we’ll get there. Yeah, we’ve just done an in person session on walking the tightrope, capacity, best interests, and disclosure. A session which we kind of split into two parts, really, the advisory bit and then claims disclosure later on. But you started off with capacity, which I think is something that a lot of people benefit from being revisited, don’t they? And you’re talking about the importance of capacity in that kind of patient relationship.
Stephen Evans 01:10
Yes, because I think it needs revisiting fairly frequently. And as we were discussing with those who attended the seminar, it’s actually quite interesting how practitioners don’t know that much about capacity, or think they do, but don’t necessarily have everything right. And as you say, the importance of capacity is it’s really absolutely fundamental to the legal side of the patient relationship.
Stephen Evans 01:45
I think done correctly, it can help with the therapeutic decisions, but those for those therapeutic decisions to be lawful and the treatment to be lawful, it’s really, really important to have an understanding of capacity and whether your patient is making their own choices, or where the decisions are having to be made for them in their best interests.
Stephen Maratos 02:07
Yeah, yeah, absolutely. And it’s really, I mean, all clinicians presumably need to know what to do when they are unsure on capacity. And it’s that Mental Capacity Act Code of Practice, I believe, isn’t it, that they’ve got to be referring back to?
Stephen Evans 02:27
So the Act itself is the Mental Capacity Act 2005. It’s meant to be relatively easy to read, but that’s a lawyer’s view. It is probably easier and more appropriate to access the code of practice. Now this is the Mental Capacity Act code of practice, not the Mental Health Act code of practice, and important to distinguish between the two. The Mental Capacity Act code of practice is around about A4 size, bit bigger and is green.
Stephen Evans 03:08
I think that anyone working in healthcare, delivering health care, should really have some basic knowledge of it. My suggestion would be to read the introduction and the first five chapters, at least. Those cover the basics. They may point you in the direction of other chapters that particular individuals want to know about. But to get legalistic about it, the Act says that anyone, any healthcare professional, has a duty to have regard to the code of practice, which means that they’re meant to follow it unless there is a good reason not to.
Stephen Maratos 03:51
Okay, yeah, so very, very different to what, like you said at the start, with a lot of people not, knowing of it, even when they’re in the treating field. So it’s obviously very important. So, when is a capacity assessment needing to be done? Is it just some, some cases or what’s your view on that?
Stephen Evans 04:12
In theory, it’s pretty much everything. I think when healthcare professionals talk about doing a capacity assessment or sometimes referred to doing a formal capacity assessment, they mean when do they fill in whatever documentation it might be that their Trust has around capacity assessments or when do they need to make entries in records and so on. But in legal terms, any interaction where something is to be done either has to be agreed to by the patient or has to be in the patient’s best interests.
Stephen Evans 04:49
So it’s always worth bearing in mind, is there any reason to think that this person cannot make this decision? Or if in the past they haven’t been able to make that decision, is there any reason to think they can now make the decision? And the situation of patients is frequently going to change. By that I mean that the generality of patients, their ability to make decisions is going to change over time. And sometimes they may not be able to make decisions because of how ill they are and if you get them better, then they start to be able to make their own decisions. But what staff generally worry about is when does it have to be recorded and documented?
Stephen Maratos 05:37
Yeah, I understand that. So, in terms of those decision making, when you’re assessing whether a person can make that decision or not, it sometimes feels a bit about… what about the wrong decisions? What about the stupid decisions? Am I right in thinking that, I mean, really, people are allowed to make those stupid decisions? We might not like it…
Stephen Evans 06:02
We might think they’re daft. They don’t think they’re daft. Or they recognise that they may not be the best decision, but it’s the decision they want to make. And yeah, people are entitled to make those decisions. And if you go back to the code of practice and you read chapter two on the principles, one of the principles is that an unwise decision does not automatically denote a lack of capacity. So, where people are making decisions, you think are unwise, the first thing to do is to try and decide whether they do have the capacity to make that decision, and if they do, you have to accept their unwise decision.
Stephen Evans 06:42
I think if they lack capacity, and be careful not to fall into the temptation, as the principles warn us against, the temptation of deciding that because it seems a daft decision, then they mustn’t understand what they’re doing, you know, why they’re making it, and therefore they must lack capacity. But if they do lack capacity to make that decision, then you can make decisions in their best interest, but it’s an important, we may come back to this, the important part of that is what the patient themselves would have wanted. And it is only a part, but it is an important part. So, what the patient thinks and what the patient chooses is always going to be important.
Stephen Maratos 07:24
Yes, yeah, that’s right. And, and it’s not, we don’t just assume that when we do have a patient who lacks capacity and we’re, we’re then treating in accordance with their best interests, we don’t just assume that a treatment intended to improve their condition, will be in their best interest, but it usually will. Is that right? Yes.
Stephen Evans 07:47
Yes. In broad terms, especially when you’re talking about treatment decisions to improve their condition or prevent a serious deterioration, that treatment is generally going to be in a patient’s best interests. But it doesn’t automatically follow and it is important to obey the process and to go through a process of deciding that, you know, what the other options are, and one option is always not to do the treatment. So you’ve always got at least two options, but looking at what the other options are and deciding which one is in somebody’s best interest. And that protects you if you then carry out that treatment; that’s what gives that, during that process, is what gives you the protection from potentially being sued or being accused of acting unprofessionally.
Stephen Maratos 08:47
Yeah, absolutely. Absolutely. And as part of that best interest assessment, there’s consultation, isn’t there, with kind of family members, with potential independent mental capacity advocates?
Stephen Evans 09:01
Yeah. So the Act and the Code of Practice give a list of people who should be consulted when making a best interest decision. Now, it is a consultation, they don’t get to make the decision. In the code of practice, it comes into chapter five, which deals with how you make best interest decisions. And you get people who you must consult if it is practical and appropriate to do so. Now the practical element there is recognising that there may be a limited amount of time to consult and that time may be very, very short, and there may be no time to consult, and the act allows for that.
Stephen Evans 09:52
It also allows the fact that you can’t get in touch with particular people. So in these days of mobile phones and so on, that’s often not the problem. But if you can’t get in touch with somebody and the decision has to be made, you’ve done what you can. And the Act recognises that. The appropriate part is whether there is any reason not to consult with somebody. And that might arise in certain family situations. There may be safeguarding issues or other issues. And it might be very, very clear either the practitioners don’t think it’s appropriate or a patient in the past has made it clear that they don’t want a particular family member to be consulted. And then that should, that’s a reason to respect that. I should add here when I talk about family members, the act refers to people who are interested in the welfare of the patient, not specifically family members. So, it might be family members, it might be friends.
Stephen Maratos 11:00
Exactly, so it’s, it’s a bit wider. It’s kind of knowing the patient, knowing the patient, isn’t it? And who they’re, carers or people that they are close to would be, isn’t it?
Stephen Evans 11:11
Yeah, absolutely. You mentioned independent mental capacity advocates or IMCAs. They come into play if there is nobody to consult other than paid carers. So, if an individual patient doesn’t have anybody interested in their welfare, looking out for them, other than paid carers, then depending upon the action that you want to take, you may need to appoint an independent mental capacity advocate who acts as the independent voice of the patient. Again, there’s provision that if there isn’t time to do that, you can carry on without, but you need to be aware of the possibility.
Stephen Maratos 12:00
Okay, yeah, that sounds right. So, I think probably the summary couple of final points that you mentioned in the session, really, when it sounds to me as if you should get guidance and advice on these points as early as possible, really, because a number of steps to be taken and gone through. So, clinicians need to be thinking about this, as you say, all the time, but kind of early on in the process.
Stephen Evans 12:30
Yeah, and I think that if you’re talking about any interventions which are particularly unusual or risky; or you’re not sure whether there are benefits or not; or where you become aware that there is or is likely to be a disagreement, and that would mean the disagreement within the clinical team as to the appropriate way forward, or the patient doesn’t have capacity but does understand what’s being done to them and doesn’t like it; or with anyone interested in the patient’s welfare who disagrees, that is a big flag for saying let’s chat to our legal team, let’s chat to our Mental Capacity Act team, and let them take the burden of working through what the legal requirements are while the clinician focuses on the therapeutic bit.
Stephen Maratos 13:31
Absolutely, that’s right. So, it’s getting those teams involved in it as well. But your final bullet point, I think, was it obviously if something’s immediately necessary to save life then it can be done. But I think there was a legal caveat to that as well.
Stephen Evans 13:47
There’s always a legal caveat, isn’t there Stephen? But yes, I mean, my advice is always if you’ve got to do something right now or this patient is going to die or irretrievably deteriorate, then try and let people know that’s going on, but do it, because almost always that will be the right thing to do. The caveat is if you are clear that there is a valid refusal of that treatment, then you can’t just say I don’t care that there’s a refusal, I’m going to save their life. If there is a clear, valid, lawful refusal, that should be respected.
Stephen Maratos 14:31
Yeah, exactly, exactly. And then it does loop back in some respects to that unwise decisions point. But if it’s been clear refusal, then we can’t override it.
Stephen Evans 14:46
If you have doubts about the clarity of the refusal, that’s something you can ask questions about. And in the meantime, you might be able to treat, but you know, that is my caveat.
Stephen Maratos 14:56
Yeah, yeah, absolutely. And then we moved on to disclosure and obviously the claim side we’ll come to in a little bit, but we’re looking at coronial disclosure and you’re detailing the issue I’d not appreciated in terms of quite how restrictive some of the disclosure obtained from the coroner and what we can do with it thereafter. But also, you did discuss in general terms about those disclosures with the coroner.
Stephen Evans 15:29
Yes. I mean, again, as you will discuss in civil claims, there’s sort of the, it’s two aspects to it. You disclose information to the coroner and the coroner will disclose information to you from other sources that you didn’t have before. What do you need to disclose to the coroner and what can you do with what the coroner discloses? So I found it useful. It’s not set out as clearly as it is under civil procedure rules, but it’s useful to note that there are a couple of offences in the Coroners and Justice Act 2009, which c an be committed in relation to documentation.
Stephen Evans 16:17
One of them is, you commit an offence if you do anything intended to have the effect of (note that it’s intended to have the effect of, not necessarily it achieves that end), if the effect of distorting or altering anything produced or provided for the purposes of a Coroner’s investigation or preventing anything from being so produced or provided. So you need to exercise a degree of care if you’re a person who is compiling and assisting with the preparation of statements, for example, that, you know, your view about what should be said is not relevant. It’s what the witness wants to say. You may tell the witness they need to talk about something else, but you should be very, very cautious about suggesting that the witness shouldn’t talk about something that they’ve already drafted into a statement.
Stephen Maratos 17:15
So, it sounds like if we get a draft, if you’re looking at a draft statement, it’s maybe add more in, but certainly not telling people to take things out.
Stephen Evans 17:35
Basically, yes. But the second defence gives some basic idea of what we’re talking about in terms of disclosure. So, it’s an offence to intentionally to suppress, conceal, alter or destroy a document which that person knows or believes to be one which the coroner, if aware of its existence, would wish to have. And it’s that last bit. So, if there’s something that you know or believe the coroner would want to know about, then that’s going to be disclosable to the coroner. It’s your starting point. And then the coroner decides, you know, you could describe it and the coroner decides whether they want to see it, you could send it and the coroner decides whether to use it.
Stephen Evans 18:06
And there is a case called the Worcestershire case and if people Google chief coroner’s guidance, there’s a law note on this. It’s the chief coroner’s law note number three, which essentially says the coroners pretty much entitled to anything and everything that they want to see, but that you can disclose on the basis that you don’t want that information to be disclosed onwards to other interested persons in the inquest. So, the coroner sees it, you can ask that they don’t send it on. And then if the coroner feels it needs to be sent on, you’re going to have to have some sort of discussion or pre inquest review to argue the point, but if at the end of the day, the coroner decides to disclose it, that’s the coroner’s decision.
Stephen Maratos 18:57
Okay, so it’s making it clear to them you can state to them your views and then there’ll be some kind of dialogue potentially. Yeah,
Stephen Evans 19:06
Yeah, and you should flag things to the coroner where you think this shouldn’t be disclosed or so on. An example might be, it’s been noted in the records, the patient doesn’t want family members to know about their medical treatment. Doctors and the Trust are bound by that even after death, by common law confidentiality. If that occurs, it should be flagged to the coroner, even though the coroner is likely to disclose those records to allow the family members to take part in the inquest.
Stephen Maratos 19:37
Okay
Stephen Evans 19:37
That would be a simple example. But then you asked about, you know, what to do with information from the coroner.
Stephen Maratos 19:45
Yeah, this was the interesting discussion we had about when you, we receive documents from the coroner and what we can then do with them.
Stephen Evans 19:56
Yeah, and how complicated or adversarial this becomes will very much depend on the particular coroner, but there is a general rule that information disclosed for a particular purpose in any legal proceedings is only to be used for that purpose, at least until it has been used in public proceedings. In this case, until it has been used in the inquest. So anything the coroner sends, which has come from another source, isn’t the Trust’s own material sent back to it, anything the coroner sends should only be used for the purposes of the inquest. And it can be very important that it’s where information is circulated within the Trust, say to make a report to the board or to provide a copy of the disclosure bundle to witnesses so that they can prepare for the inquest, that everybody understands that that can only be used for the purpose of the Trust’s own investigation and putting forward its um arguments in relation to the inquest. If you want to use it for anything else. then you really ought to contact the coroner and say, you’ve sent us this information, we would like to use it for this purpose, is that okay, basically.
Stephen Maratos 21:18
Yeah, so it’s those discussions with the coroner and potentially for Trusts and clients thinking about wording they would use when disseminating something to people that they have the coroner’s agreement, that it shouldn’t be shared further?
Stephen Evans 21:37
Yes, because there is a standard textbook on coroners called Jarvis, (spelt Jervis), on coroners, which suggests that coroners would be well advised to put a notice on saying, you know, this material basically isn’t to be used for other purposes. But most coroners don’t, these days. So, the Trust may want to consider when they send on material, just saying that to individuals, just pointing out that it’s for the preparation for the inquest, they shouldn’t use it for other purposes. It may be that other purposes arise that are perfectly legitimate, and people wear more than one hat, so, you know, somebody who is interested in service provision or patient safety or the abilities of individual clinicians might look at information received from the coroner in more than one way. But it’s when they’re getting into those other possible areas of use of that information that they need to be aware that they should come back to the legal department and the legal department should ask the coroner if that’s okay. Reach I s potentially a contempt of court. So it does carry potential serious consequences.
Stephen Maratos 22:54
Absolutely. Absolutely. And it’s that dialogue, and as you said, there’s a range between different coroners, isn’t there? In terms of how they review things, but that dialogue probably, in many instances, will allow things to be used in other contexts for learning.
Stephen Evans 23:11
I expect so. I wouldn’t expect many coroners to be unreasonable about it. And if you say, for example, we think there’s a patient safety issue that’s been raised in other material, we want to look at that more thoroughly. I’d be surprised if a coroner said no. What it does, is it gives the coroner notice that you will or do intend to look at that particular topic and the coroner may then ask whether you made any decisions about it.
Stephen Maratos 23:43
And ask for further documents, potentially, knowing that you’ve used it for other investigations. And the coroner might then be aware of those and ask for copies of those to consider.
Stephen Evans 23:55
That’s right. And then where it overlaps with what you’re going to talk about, Stephen, is sometimes, you know, you get the coroner’s bundle and there’s other information in there and it may be that you want to disclose that to an expert instructed in relation to the civil claim. And again, you should get the coroners permission to do that. Now doing that obviously alerts the coroner. to the fact that you’re seeking an independent expert report, as I think you’re going to cover, that doesn’t make that report disclosable to the coroner. But it indicates to the coroner that there may be another opinion floating about.
Stephen Maratos 24:41
Yeah, yeah, that’s right. And the reason being it would, be a sort of expert evidence obtained on the civil claim being privileged and being an exception to what would be disclosed to the coroner. Privileged documents wouldn’t fall to be disclosed, would they?
Stephen Evans 24:58
No, so anything that you couldn’t be required to disclose in a civil claim, you don’t have to disclose to the coroner.
Stephen Maratos 25:07
Yeah, yeah, absolutely. Okay, excellent. And then, Rachel Morris and I then talked a bit about civil claims and disclosure on those. And we ran through some of the kind of the legal basics, if I can put it that way, in terms of what many people have come across, I’m sure in terms of the list of documents that we sign off at that stage of proceedings on a case, noting that it’s become quite a procedural step that we all run through where we sign off a list of documents, particularly on a clinical claim. And we quite quickly then move on to the next stage, finalising our witness evidence, finalising the expert evidence. Well, actually there’s a lot to disclosure and a lot of potential landmines and danger in that stage. We’ve got to think very carefully about it, making sure we draw the distinction between documents that we have, which obviously we list them in that first part of the list of documents. They’re the easy ones in a way, but also it’s making sure we list those documents that we perhaps used to have and we now no longer have and making sure we highlight those on the disclosure list as well.
Stephen Maratos 26:29
We discussed as well, the difficulties with medical records and I think very much, we try to just get the records disclosed, but actually medical records is a term which has in many ways moved on from what someone might think of as their medical records, that folder of bits of paper and yellow slips and A5 test results slotted in there. Because there’s so many issues that we have with subcategories of records, electronic issues where we click through to different test results, and it’s how we disclose those and ensure that they stay in the format that is understood, and seen by the clinicians at the time, and I think it’s quite a difficult circle to square, or I’m not sure what the phrase is, but yeah.
Stephen Evans 27:28
I thought, Stephen, that was a really interesting discussion because I think you have the same thing in inquests I deal with. It’s been a long time since I did a list of documents for a civil claim. But as you say, you were saying, the temptation is in the list you would put perhaps medical records, you might give categories of medical records to some extent. But it’s actually being sure you then provide everything. And I thought there was an interesting discussion about some of the pitfalls that can occur there.
Stephen Maratos 28:03
Definitely, and test results seem to be an obvious one where they might be in a tab or a subfolder on the system. And it’s hard. But as well as the medical records, there’s disclosure in terms of making sure that defendants and Trusts have thought about all the other. information and documents they have, be it datix, protocols, um, staff rotas, complaints documents. There’s a lot of extra information out there and I sometimes think it’s tempting to look at things in the sense of, well, we need to provide these because of it’s a procedural step, instead of looking at it more proactively and thinking well actually some of this information if we start to look into it and we start to investigate it may assist our case even more. We may be able to set out a more of a coherent explanation for what has happened. We may have a greater understanding of why things have happened in a particular way. Whereas having not located those documents, we’re not only at risk of criticism from the. other side, but also the court. But it also hinders us reaching that point where we can make an assessment on the risks on a case, which for a claim is, is often what we’re needing to do.
Stephen Evans 29:23
Some interesting comments made about information which is generated as part of the process of storing or accessing records, which people are often not aware of. So, the system may keep a record of who actually accesses particular parts of the records and when they access it. And that may not be relevant in many cases, but I think you and Rachel were saying there can be cases where, when was the information available to the clinician? Did they look at it? Was it all available at that particular point in time?
Stephen Maratos 30:02
Absolutely. Yeah, definitely. And that can be fundamental to whether we’ve got risks on the case, which assessing early on, whether we settle a claim or whether we pay damages often comes to the question of legal costs, doesn’t it? And I think Rachel talked about some of the examples of, I think, there was a case where a defence was struck out because the defendant failed to provide disclosure. We’ve got a commercial case, so not, completely analogous with the clinical claims, but on other instances, effectively, it’s a cost penalty that we get, even if we get permission to disclose documents late, if we’re providing them right before a trial, we risk vacating the trial. We risk having to have, you know, new experts meetings, we risk having to new witness statements and all those costs are going to be falling on us if we simply have located a document right before trial because it’s only at that point that we’ve done a proper search for documents and will quite rightly be criticised by the courts. That proper search should have been done at the outset really.
Stephen Evans 31:18
And I think you were saying also that these days, other sources such as emails or, you know, whether there are any WhatsApp conversations that take place need to be thought about.
Stephen Maratos 31:30
Absolutely. And we’ve got to just be aware of so many different places that information can be stored these days, but it’s looking at everything in our, and I think Rachel explained this, looking at every line in a defence and trying to work through and saying, well, how are we going to back up that position? Is it a document? Is it a witness statement? And if it’s a witness statement, on what is that witness statement based? And often that again comes back to a document. So it may be that the witness is explaining why something happened in a particular way, because that was the policy in place. That was the dictat set down at one of the meetings. It’s, there’s usually a basis for it in a document and it’s going through that defence, thinking about our evidence, and thinking about how we’re going to show the courts and get that position accepted.
Stephen Maratos 32:30
And it’s really interesting. I think, as I said, when I started a bit about our civil claims, I think it gets forgotten a bit disclosure in civil claims and, and aside from the medical records, obviously, they’re kind of obvious, but I think we need to just be a bit more, ‘on the ball’ is not quite the phrase, but have it a bit more focused to think about how those documents are going to play out and how they’re going to affect the claim. But it was certainly, you know, I thought it was very interesting session overall. I thought a lot of useful things came out of it.
Stephen Evans 33:05
Yeah, and I agree. And although the capacity, best interest bit doesn’t sit with disclosure, coming back to the title of the whole thing, you know, they are both elements of walking the tightrope, being careful to stay, if you like, on the straight and narrow, and not veer off to one side or the other, because things get misunderstood.
Stephen Maratos 33:29
Yeah, absolutely. Absolutely. And when you look at it as I do with a set of claims goggles at the start, actually the capacity assessment and how that best interests tests are conducted and reviewed. It’s something that needs those documents as well, doesn’t it? Because, and it needs that evidencing in the records. And if it’s been necessary to consider capacity, as you were saying, on treatment interactions, then we need to be detailing why a decision has been taken and explaining it. And again, that may be things like WhatsApp conversations, where someone is checking with a more senior colleague, perhaps, about the tests they need to consider, how they need to review. And that potentially comes out in a claim later. And there’s a lot of documents that come out of everything.
Stephen Evans 34:24
And I think that, so the, the overall lesson at the end of the day is anybody that documents anything in relation to work should expect it to potentially be seen by other people. And that is not an excuse to not document it because that’s even worse.
Stephen Maratos 34:43
That’s it, that’s it. Well, I remember years ago going to seminars and things like that and then barristers were always there trying to scare the doctors by saying, you know, just think about everything you do. Think about it being read out in court, or pulled apart in court, but we need it written down. We need it there.
Stephen Maratos 35:04
Excellent. Well, thanks Stephen. I think it was a good session and I hope this has been a little useful summary and we’ll have further podcasts and sessions in the future. So, thanks very much.
Stephen Evans 35:15
Thank you, Stephen.