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Assessing capacity

MPS Medicolegal Adviser Dr Sonya McCullough clears up some common grey areas for GPs

Can I prescribe contraception to a patient under 16?

Amy, a 15-year-old girl, attends her GP surgery alone and explains to Dr G that she would like to go on the contraceptive pill as she is now in a sexual relationship with her boyfriend. Dr G is understanding and listens to Amy, who appears to be making an informed decision.

However, Dr G gently explains to Amy that as she is under 16, she cannot provide consent and will have to make another appointment and return with her mother. Amy becomes tearful and explains she won’t be able to do that, as her mother does not know she is in a sexual relationship.

Dr G feels that Amy is competent to make an informed decision about using contraception. She is concerned that Amy may continue to have sexual intercourse with her boyfriend if she does not prescribe the pill, with the resultant risks of pregnancy and sexually transmitted infection. She calls MPS for advice.

Learning points: 
  • Young people over the age of 16 are treated as adults, are assumed to be competent and can give valid consent to treatment according to Section 23 of the Non-Fatal offences Against the Person Act (1997).
  • Children under 16 are also often competent. However, there is no Irish law or court decision that holds that a child under 16 can give valid consent to medical treatment. Under the age of 16, the Constitution of Ireland recognises the “inalienable right and duty of parents” to provide for their children and to make decisions affecting their religious, moral, intellectual, physical and social welfare. The Medical Council states: “Where the patient is under the age of 16 years, it is usual that the parents will be asked to give consent to treatment on the patient’s behalf.”
  • GPs are frequently consulted by unaccompanied under 16s seeking medical treatment. An attempt should be made to contact the parent, eg, by telephone, to gain consent. Consent may be implied by the parent making the appointment, but this still needs to be verified and documented.
  • You should use your own judgment as to whether to see a minor who does not want their parents to know or be told about the consultation. There would be support for any GP who makes a decision to see a minor without parental consent if they believe the minor fulfilled Gillick principles – but any such decision must be documented carefully in the patient’s notes.
  • It is worth encouraging the patient to involve their parents in the decision making process and you could offer to assist with this.

Can I undertake a testamentary capacity assessment?

Mr M is an 82-year-old patient of Dr B. He is in the early stages of vascular dementia, but retains the ability to make certain decisions for himself. He is accompanied into the surgery by his daughter.

Dr B has undertaken mental capacity assessments before, but he is unsure how to proceed with the Affidavit

Mr M explains that he would like to make a new will, but his solicitor has requested that a doctor makes an assessment of his mental capacity first. This is to ensure that the will is valid. Mr M provides Dr B with a letter, in which the solicitor asks for the GP to swear an Affidavit of Mental Capacity at the time of making the will. This relates to the patient’s capacity in relation to the particular activity or action in question, rather than a general assessment of the patient’s mental condition.

Dr B has undertaken mental capacity assessments before, but he is unsure how to proceed with the Affidavit. He calls MPS for advice to check he is within his area of competence before proceeding.

Learning points:
  • Any doctor can assess testamentary capacity, not just a psychiatrist.
  • Testamentary capacity is a legal test; it is not an exact science and can be very difficult to assess. It is a variable concept, which can be date and time specific.
  • Even though the patient may not have capacity all the time, a will can be made in a lucid period if the person has capacity at the time it is made.
  • Under Irish law, a person making the will or ‘testator’ must be 18 years or over or be married and must be of sound mind.
  • The case of Banks v Goodfellow found that:
    • The testator must understand he is making a will
    • The testator must be capable of knowing the nature of his estate.
    • The testator must be able to give consideration to persons expected to benefit.
  • Remember to bear in mind the individual needs of each patient – allow reasonable time for relaxed conversation between each test, speak in a clear manner which the patient understands, and assess capacity at a time of day which suits the patient.
  • When assessing testamentary capacity, the Report of the British Medical Association and the England Law Society Assessment of Mental Capacity – Guidance for Doctors and Lawyers is a helpful guidance tool.
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