Consent and capacity
Capacity to consent
Our experts discuss cases where mistakes have been made in assessing patients' capacity to consent to treatment.
The introduction of mental capacity legislation in the UK has provided a framework for making decisions when patients may lack capacity to make these decisions for themselves.
Yet the evidence suggests that doctors are still getting these decisions wrong. This page takes a closer look at why this might be.
From the GMC's guidance
'You must not assume that a patient lacks capacity to make a decision solely because of their disability [or] their apparent inability to communicate.' (Consent, paragraph 65)
Capacity is 'time and decision specific'
It is not uncommon in a healthcare setting for someone to ask whether a patient ‘has capacity’.
However it is crucial to establish what the decision is to be made, before assessing a patient's capacity to make that decision.
You must not assume that because a patient lacks capacity to make a particular decision on a particular occasion, they lack capacity to make any decision at all, or that they will not be able to make similar decisions in the future.
Baroness Sheila Hollins stresses the importance of assessing capacity for a particular decision at a specific time.
From the GMC's guidance
'You must assess a patient's capacity to make a particular decision at the time it needs to be made. You must not assume that because a patient lacks capacity to make a decision on a particular occasion, they lack capacity to make any decisions at all, or will not be able to make similar decisions in the future.' (Consent, paragraph 71)
The legal framework
Mental capacity legislation was introduced in Scotland in 2000, and England & Wales in 2005, and provides a framework for making decisions when patients may lack capacity to make these decisions for themselves.
While there are some differences between the four countries of the UK in the legislation and the way in which it is applied, the GMC's guidance Consent: patients and doctors making decisions together and our Mental capacity decision support tool applies consistently across the UK, whatever country you are practising in.
Power of Attorney and Welfare Guardianship
In England, Wales and Scotland the law allows people to be appointed to make decisions on behalf of an adult who cannot make decisions for themselves - a Lasting Power of Attorney (England and Wales) or Power of Attorney and Welfare Guardianship (Scotland).
Powers of Attorney and Guardianship must be registered with the Offices of the Public Guardian.
You should make enquiries about whether someone holds a Power of Attorney or Welfare Guardianship and the scope of their decision-making authority.
England and Wales
Further guidance is available from Public Guardian offices (OPG England & Wales).
A power of attorney is an authority given by an individual (known as the Granter) to another person(s) (known as the Attorney/s) to deal with aspects of the Granter's affairs.
This could relate to financial/property matters and/or personal welfare. Welfare powers cannot be exercised until such time as the Granter has lost the capacity to make these decisions. Welfare Guardianship is more likely to be employed in the case of people with learning disabilities where lack of capacity has been established.
This involves an assessment of the ability of the adult concerned to make informed decisions and an application to the Sheriff’s Court for a guardianship order to authorise a particular person to make decisions on her/his behalf. Except in emergencies.
The Adults with Incapacity Act requires that medical treatment is authorised by a section 47 certificate granted (usually) by the medical practitioner. Where there is a welfare proxy (attorney, guardian) with the authority to consent, the S.47 certificate of incapacity is still required as well as the consent of the proxy.
For further information, see the Office of the Public Guardian (Scotland) and the Mental Welfare Commission (Scotland).
You may find the Mental Welfare Commission (Scotland)'s leaflet Right to Treat (pdf) useful.
The Mental Capacity Act (2016) in Northern Ireland received Royal Assent but will not come into force for a few years. In the meantime mental capacity decisions are dealt with under case law.
The role of family carers
Geraldine McCluskey talks about the role of family carers when assessing capacity to consent.
Don't make assumptions about patients' capacity
In the film Wood for the trees, the doctor in the assessment unit states that he believes Marie has the capacity to refuse to be examined.
But he has not checked whether Marie understands the consequences of refusing to be examined: if she doesn't then she doesn't have capacity to refuse consent. Neither has he tried to maximise her capacity by giving her more information, or more time to make a decision. And he has not even tried to seek Marie's consent in a more relaxed environment or waited until her sister is there to support her.
This may seem like an extreme example, but anecdotal evidence suggests that these sorts of incorrect assumptions are frequently being made by doctors. Have a look at the interactive learning sessions three and four for more exploration of these issues.