Competence and capacity

Normally competent individuals may lose capacity temporarily because of pain, shock, drugs or their condition

Patients need to be competent (or have capacity) in order to give their consent. Everyone over the age of 16 is assumed to be competent.

The Mental Capacity Act (MCA) 2005 (for England and Wales) states that a person cannot make a decision for themselves if they are unable to:

• Understand the information relevant to the decision
• Retain that information
• Use or weigh that information as part of the process of making the decision
• Communicate their decision (whether by talking, using sign language or any other means).

Normally competent individuals may lose capacity temporarily because of pain, shock, drugs or their condition. Patients who have mental health problems may have difficulty making decisions about their treatment, but this should not be assumed. There may well be a difference between obtaining consent to treat them for their mental health problem and another health problem that they encounter.

Assessing capacity can be very difficult where patients suffer from serious communication problems

On each occasion that treatment is required for a patient who does not have the capacity to consent, a decision is made in the best interests of the patient. The MCA states the following should be considered:

• The past and present wishes of the patient (especially any written statement when the patient had capacity)
• Religious beliefs or values expressed by the patient when competent
• The views of relevant others (eg, carers, relatives)
• The patient should be involved in the consent process and, where appropriate, encouraged to give their consent to particular aspects for which they do have capacity.

Assessing capacity can be very difficult where patients suffer from serious communication problems.

Frame questions in such a way that the patient will need to give a full response in order to assess their understanding, eg, “Tell me what you understand by…” rather than “Do you understand?” which may only require a yes or no answer.

How do you assess capacity?

The nominated LPA starts to make decisions on behalf of a patient when they lose capacity

The assessment of capacity is decision-specific and there are two stages:

• Is there an impairment of or disturbance in the functioning of the patient’s mind or brain? If so,
• Has it made the person unable to make this particular decision?

The MCA includes a checklist of factors to be considered and makes reference to a lasting power of attorney (LPA). A competent adult can nominate an LPA who may be able to make decisions about the  continuation or withdrawal of life-sustaining treatment. This agreement must expressly indicate the power to make decisions about personal welfare (which may or may not include life-sustaining treatment).

The nominated LPA starts to make decisions on behalf of a patient when they lose capacity, and it is up to a medical professional to decide when this is. More information can be found in the MCA Code of Practice.

Capacity in Scotland and Northern Ireland

Scotland – The Scottish Government is currently consulting on the Adults with Incapacity (Scotland) Act 2000. The closing date for comments is 10 October 2011.

Northern Ireland – There is no specific legislation covering mental capacity, so decisions should be based on common law and best practice, acting in the best interests of the patient.

Mental Capacity Act – Deprivation of Liberty Safeguards

The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DOLS) for England and Wales provide legal protection for those who lack capacity and who may be deprived of their liberty in hospitals or care homes. They apply to anyone aged 18 or over who suffers from a mental disorder or disability of the mind, and who lacks the capacity to give informed consent to the arrangements made for their care and/or treatment.

The safeguards are designed to:

• Ensure people can be given the care they need in the least restrictive regimes
• Prevent arbitrary decisions that deprive vulnerable people of their liberty.

MPS has produced two factsheets on MCA DOLS.

Refusing consent

If patients are competent, they are entitled to refuse consent, no matter how illogical this seems

You should listen to patients and respect their views about their health, even if you do not agree with them.

Patients can refuse consent. If they are competent, they are entitled to refuse consent, no matter how illogical this seems. If this happens, it is a good idea to explain to them the possible consequences of their decision, not necessarily with a view to changing their mind, but to clarify the situation.

Check their understanding of the decisions they have made and document the discussion carefully. The MCA requires that all factors, including religious beliefs or values expressed by the patient when competent, be taken into consideration.

Patients can withdraw consent during a procedure – but if stopping the procedure at that point would genuinely put the life of the patient at risk, the practitioner may be entitled to continue until this risk no longer applies.

Elderly patients

As patients get older, there is a temptation to believe that they have decreased capacity to take decisions about their treatment. However, GPs should always work on the assumption that capacity to give consent for treatment exists, unless it is proven otherwise.

The Department of Health’s guidance on Seeking Consent: Working with Older People points out that: “It should never be assumed that people are not able to make their own decisions, simply because of their age or frailty.”

End of life decisions

Before people lose the capacity to consent to treatment, particularly as a result of a progressive condition, they may make an advance decision or directive (or living will). If the statement was made by a competent adult, and there is no reason to believe that they have changed their mind, it should be respected.

Where there is doubt, the courts will decide whether an advance decision exists and whether it is valid

The MCA provides some protection for doctors dealing with advance decisions. In particular, it provides a safeguard for doctors acting on advance decisions.

Doctors will not be held liable if they:

• Are in doubt over whether there is an advance decision and therefore provide treatment
• Believe a valid and applicable advance decision exists and withhold or withdraw treatment.

Where there is doubt, the courts will decide whether an advance decision exists and whether it is valid and applicable to treatment. Until the court decides, nothing should prevent the provision of life-sustaining treatment or anything believed to be necessary to prevent a serious deterioration in the patient’s condition.

Advance decisions (or directives) are governed by common law rather than by legislation in Scotland and Northern Ireland.