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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 (but see Box 1, below).

The test of capacity currently applied in the Irish courts is the “C test”, which derives from the English case of Re C (see Appendix 1)1. The test is in three parts, all of which have to be fulfilled for a patient to be deemed competent to make the decision they are being asked to consider:

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

The Mental Capacity Bill which was drafted in 2008 is still pending at the time of writing (March 2011). However this draft defines capacity as “the ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is to be made”. It also includes provisions for the establishment of a Guardian Board to replace the Ward of Court. Under this system, it will be possible to appoint personal guardians who will be able to make healthcare decisions on an incapacitated person’s behalf.

Box 1: Wards of Court

Although, in general, a person’s capacity to make a decision should be assessed in context, under current legislation* a Ward of Court has been deemed to be of “unsound mind” and thus loses the right to make decisions on his/her own behalf. Routine decisions regarding a Ward’s day to day welfare are made by a person appointed by the court, but consent to medical treatment must be obtained from the President of the High Court. Regardless of the legal obligation to refer matters of consent to the court, however, doctors are still bound by professional ethics and these dictate that they must respect patients rights to bodily integrity and involve them in decision-making to the best of their ability (see Box 3 for guidance on this).

* The Lunacy Regulation (Ireland) Act 1871.

At present, no-one outside the courts can consent to treatment on behalf of an incapacitated adult. This does not mean, however, that incapacitated adults should be denied necessary medical treatment.

Treatment can – and should – be given if the patient’s doctors, in consultation with the patient’s relatives and carers, conclude that it is in the patient’s best interests.

The focus should be on what the patient would consider to be in his/her best interests, not what the doctor would want done if he were in the same position. Any intervention should be the minimum necessary to safeguard the patient’s wellbeing.

The guidance in Box 2 (see "Assessing capacity" page) is taken from the English Mental Capacity Act Code of Practice. Although it derives from English law, it sets out basic principles that are equally applicable in Ireland.

The focus should be on what the patient would consider to be in his/her best interests, not what the doctor would want done if he were in the same position