Capacity

Doctors should presume that adults have the capacity to consent to or refuse a proposed treatment unless it can be established that they lack that capacity

Both legislation* and the GMC’s guidance emphasise that doctors should presume that adults have the capacity to consent to or refuse a proposed treatment unless it can be established that they lack that capacity. Each assessment of an individual’s capacity should relate to a specific decision – a patient may, for example, be incapable of understanding the complex implications of a major procedure but still be able to comprehend the risks and benefits of a simple intervention. While the general principles are the same across the UK, the actual test for capacity is slightly different, depending on the jurisdiction.

England and Wales

In England and Wales, the test of capacity is in two parts:

  • Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?
  • Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?

Scotland

In Scotland, incapacity is defined in the Adults with Incapacity Act as being incapable of any of the following:

  • Acting
  • Making a decision
  • Communicating a decision
  • Understanding a decision
  • Retaining the memory of a decision.

The Act does not set out a test of capacity, but says that incapacity “must be judged in relation to particular matters, and not as an ‘all or nothing’ generalisation”.1 The Scottish government, offers the following guidance for assessing capacity:2

  • Does the person have a mental disorder (which includes mental illness, learning disability, dementia and acquired brain injury), or severe communication difficulty because of a physical disability (such as a stroke or severe sensory impairment)? If so,
  • Has it made the person unable to make the decision or decisions in hand?

Northern Ireland

There is no specific legislation covering mental capacity in Northern Ireland. As such, the common-law test3 applies:

  • Does the patient comprehend and retain treatment information?
  • Does the patient believe that information?
  • Does the patient weigh that information, balancing risks and needs, to arrive at a choice?

The Mental Capacity Act Code of Practice4 offers useful guidance on assessing an individual’s ability to make a decision (see Box 1).

* Adults with Incapacity Act (Scotland) 2000 and Mental Capacity Act 2005

Box 1: 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 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)?

Mental Capacity Act 2005: Code of Practice, p. 41

 

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