Capacity to consent – adults
- To make a decision about care the patient should be able to:
- understand and remember the information provided
- weigh up the information provided
- tell you their decision.
- A patient’s capacity may vary from one day to the next, or depend on the decision they are being asked to make. You should not assume that just because the patient does not have capacity on one occasion, they lack the capacity to make all decisions.
- Making decisions about treatment and care for patients who lack capacity is governed in:
- England and Wales by the Mental Capacity Act 2005. The Act is supported by a Code of Practice for healthcare workers which you should refer to.237 A person lacks capacity if, at the time the decision needs to be made, they are unable to make or communicate the decision because of an ‘impairment or disturbance’ that affects the way their mind or brain works. Further information for those practising in England is available from the Department of Health.238
- Scotland by the Adults with Incapacity (Scotland) Act 2000.239 The Act is supported by Codes of Practice for healthcare professionals which you should refer to.240 A person lacks capacity if they cannot make decisions or communicate them, or understand or remember their decision, because of a mental disorder or a physical inability to communicate in any form.
- Northern Ireland by the Mental Capacity Act (Northern Ireland) 2016, which partially commenced in late 2019 (phase one – for deprivation of liberty, offences, research and money and valuables).241 The Act is supported by Codes of Practice for phase one of the implementation. A person lacks capacity if, at the time the decision needs to be made, they are unable to understand information, retain information, appreciate the relevance of the information or communicate their decision because of an impairment of, or a disturbance in, the function of the mind or brain. The timescales for implementing the remainder of the Act are as yet unclear, so you should seek legal advice if you have concerns about a person’s capacity to make decisions.
- No one can make a decision on behalf of an adult who has capacity. If a patient asks you, or a relative or carer, to make decisions for them you should explain:
- that it is still important that they understand the options
- what the treatment or investigation will involve.
- You must work on the presumption that every adult patient (over the age of 18) has the capacity to make decisions about their care, and to decide whether to agree to, or refuse, an examination, investigation or treatment.
- You must regard a patient as lacking capacity only once it is clear that, having been given all appropriate help and support, they cannot understand, retain, use or weigh up the information needed to make that decision, or communicate their wishes.
- You must not assume that a patient lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including mental illness), beliefs, apparent inability to communicate, or the fact that they make a decision with which you disagree.
- A patient’s ability to make decisions may depend on the nature and severity of their condition, or the difficulty or complexity of the decision.
- You must assess the patient’s capacity to make an informed decision about the treatment and then assess whether they are able to decide whether to have the treatment.
- If the patient does not have capacity, the Mental Capacity Act 2005 in England and Wales, and the Mental Capacity Act (Northern Ireland) 2016, enables the patient to authorise someone who is over 18 years of age to make decisions for them under a Lasting Power of Attorney (LPA). Alternatively, someone who has authority to make treatment decisions for that person, as a court appointed deputy, can give consent.242 In Scotland, the Adults with Incapacity (Scotland) Act 2000 enables someone to hold Power of Attorney (PoA). The phrase ‘next of kin’ has no legal definition or status, and such a person cannot give or withhold consent on behalf of the patient.
- There are two types of LPA. One that enables the attorney to make decisions regarding the patient’s property and one that enables the attorney to make decisions regarding the patient’s care or welfare. The care and welfare attorneys are called personal welfare LPAs in England and Wales, welfare PoAs in Scotland, and care, treatment and personal welfare LPAs in Northern Ireland. The attorney powers relating to the patient’s property are valid if the patient has capacity. However, the attorney powers relating to care or welfare only come into play if the patient lacks capacity, or the attorney reasonably believes the patient lacks capacity. If you are relying on someone who has an LPA or a PoA to give consent on behalf of your patient, you should keep a copy of the LPA or PoA document.
- You must take account of the advice on assessing capacity in the Codes of Practice that accompany the Mental Capacity Act 2005, the Adults with Incapacity (Scotland) Act 2000, the Mental Capacity Act (Northern Ireland) 2016, and other relevant guidance. If your assessment is that the patient’s capacity is borderline, you must be able to show that it is more likely than not that they lack capacity.
- The decision or action taken on behalf of the patient who lacks capacity must be in their best interests.
- You should record in the patient notes your reasons for deciding that:
- the treatment is in the patient’s best interests
- the patient lacks capacity.
- You should offer patients who are likely to have difficulty retaining information a written record of your discussions, and the decisions that were made.
237 Department for Constitutional Affairs (2007) Mental Capacity Act 2005, Code of Practice [Accessed 20 Nov 2020]
238 Department of Health (2009) Reference guide to consent for examination or treatment. 2nd ed [Accessed 20 Nov 2020]
239 Adults with Incapacity (Scotland) Act 2000 [Accessed 20 Nov 2020]
240 The Scottish Government. Adults with Incapacity: forms and guidance [Accessed 20 Nov 2020]
241 The Mental Capacity Act (Northern Ireland) 2016 [Accessed 20 Nov 2020]
242 Office of the Public Guardian Lasting power of attorney: acting as an attorney [Accessed 20 Nov 2020]