In our last blog we considered the importance of patient consent. One of the key elements of valid consent is the patient’s capacity to give that consent and the Mental Health Act 2005, which came into force in October 2007, deals with all issues surrounding mental capacity.
First and foremost the Act imposes a duty on all healthcare professionals to have regard to the Mental Capacity Code of Conduct. It is therefore important to read and understand this document when considering whether a patient has capacity to provide consent.
A person lacks capacity if:
- They have an impairment or disturbance (for example a disability, condition or trauma or the effect of drugs or alcohol) that affects the way their mind or brain works; and
- That impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.
It is very important to note that capacity is to be assessed at the time the specific decision is required. Therefore, a patient may have capacity to consent to some treatment but not to others, or may have capacity at some times but not others.
Under the Act you must assume the patient has capacity unless you can establish that they do not. And simply because a patient’s decision to refuse treatment is unreasonable does not mean they lack capacity.
Assisting Those Who May Lack Capacity
If you are unsure whether a patient does lack capacity, all practical and appropriate steps should be taken to assist the patient in making the decision before you determine they actually do lack capacity. This will mean changing the way you provide information to the patient; giving the patient all alternatives to treatment; considering whether there is a time in the day they have more understanding to make the decision.
Best Interests of the Patient
Under English Law no one is able to give consent to the examination or treatment of an adult who lacks the capacity to give consent, even parents, relatives and healthcare professionals. The exceptions to this are where there is a Lasting Power of Attorney or a court appointed deputy.
However, the Act protects healthcare professionals from civil and criminal legal liability if treatment is provided in the patient’s best interests. The Act states that you must take the following steps before acting in the patient's best interests:
- Consider whether the person is likely to regain capacity and if so whether the decision can wait:
- Involve the person as fully as possible in the decision that is being made on their behalf;
- As far as possible, consider:
- the person’s past and present wishes and feelings (in particular if they have been written down).
- any beliefs and values (eg religious, cultural or moral) that would be likely to influence the decision in question, and any other relevant factors.
- the other factors that the person would be likely to consider if they were able to do so.
4. As far as possible, consult other people if it is appropriate to do so and take into account their views as to what would be in the best interests of the person lacking capacity, especially:
- anyone previously named by the person lacking capacity as someone to be consulted.
- anyone engaging in caring for or interested in the person’s welfare.
- any attorney appointed under a Lasting Power of Attorney.
- any deputy appointed by the Court of Protection to make decisions for the person.
5. For decisions about serious medical treatment, where there is no one appropriate other than paid staff, healthcare professionals have to instruct an Independent Mental Capacity Adviser
6. If the decision concerns the provision or withdrawal of life-sustaining treatment, the person making the best interests decision must not be motivated by a desire to bring about the person’s death.
Assessing whether a patient has capacity will be a balancing act. You will also need to bear in mind your duties to treat patients with dignity. This may therefore lead to difficult situations; remember to take notes of any decisions made as this will later assist if any queries are raised.