Patients who lack capacity

In assessing a patient’s capacity, it is important to bear in mind that mental capacity is not an “all or nothing” concept

Everyone over the age of 16 is assumed to have the capacity to consent to treatment, unless this is proved otherwise. In assessing a patient’s capacity, it is important to bear in mind that mental capacity is not an “all or nothing” concept.

A person’s capacity to make decisions depends on two things:

  • The nature of the decision to be made (a person may, for example, have the capacity to consent to diathermy to remove a wart but not to a liver transplant).
  • Their state of mind at the time (capacity may fluctuate, and incapacity can be temporary).

The test of a patient’s capacity to give or withhold consent to treatment is based on case law. A patient with schizophrenia asked for an injunction to stop doctors from amputating his gangrenous foot and the court granted the injunction because three essential criteria were met:

  • He understood the treatment information and the implications of accepting or rejecting the various treatment options.
  • He believed the information given to him.
  • He could weigh it in the balance and arrive at a choice.1

This test has subsequently been refined in the Code of Practice for the Mental Capacity Act 2005 (see Box 4).

Box 4: Assessing capacity

  • “Does the person have a general understanding of what decision they need to make and why they need to make it?
  • “Does the person have a general understanding of the likely consequences of making or not making this decision?
  • “Is the person able to understand, retain, use and weigh up the information relevant to this decision?
  • “Can the person communicate their decision (by talking, using sign language or any other means)?
  • “Would the services of a professional (such as a speech and language therapist) be helpful?
  • “And in more complex or serious decisions; is there a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)?”
    (DCA, Mental Capacity Act 2005: Code of Practice, p.41)

  

When the patient is an incapable adult, the guiding principle is to act in the patient’s best interests

When the patient is an incapable adult, the guiding principle is to act in the patient’s best interests.

In England, Wales and Scotland, individuals can appoint someone as a welfare attorney, who will be able to make decisions about medical treatment on their behalf if they later lose the capacity to make decisions for themselves.

Moreover, in England and Wales, the Court of Protection can appoint a deputy with the authority to make healthcare decisions on behalf of an incapacitated adult.

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