Capacity and Consent

What is consent?

The permission that a patient must give to allow any medical treatment / procedure to take place.

Valid consent is…

1. Voluntary

2. Informed

3. Given by someone with capacity

What is voluntary consent?

The patient giving/holding their consent must be doing this without any pressure or influence

What is informed consent?

The health professional must ensure that they give the patient all information relating to the treatment / procedure.

This includes what it involves, the benefits, any risks, any alternative treatments, what will happen after the intervention and what happens if the intervention is unsuccessful.

What is capacity?

The ability of a patient to understand information about an illness and treatment options and make informed decisions that reflect their own values and preferences.

How can a doctor assess whether a patient has capacity?

• Can the individual understand the information?

• Can the individual retain the information long enough to make a decision?

• Can the individual weigh up the information to make an informed decision?

• Can the individual communicate their decision back to the doctor?

How can doctors determine capacity in adults?

In most cases, adults are presumed to have capacity unless proven otherwise (e.g., due to cognitive impairment, mental health conditions, or influence of medication).

What is competence?

Competence refers to the level of mental ability required to make decisions about a specific issue or to carry out a particular action.

What is Gillick Competence?

A legal principle used to assess whether a child under 16 can consent to their own treatment without parental involvement, based on their maturity and understanding.

How is a child deemed Gillick competent?

• The child must be able to understand the information relevant to the treatment including its nature, purpose and possible consequences.

• The child should be able to make a decision after weighing up options.

• Competence is assessed individually, meaning a child may be considered competent for certain decisions (e.g. low risk treatments) but may not be for others (e.g. procedures with significant risks).

Unlike adults, children cannot refuse treatments if its in their best interest.

What is the Mental Capacity Act (2005)?

It provides a framework for assessing whether an individual 16+ has the capacity to make decisions, and, if not, it ensures that decisions are made in their best interests with minimal restriction to their rights.

What are some core principles of the Mental Capacity Act (2005)?

• Everyone 16+ is assumed to have capacity unless proven otherwise.

• Having capacity and being 18+ allows someone to make decisions others might disagree with, as long as they are able to understand the consequences.

• Support should be provided to help someone make a decision.

• If someone lacks capacity, decisions should be made in their best interest.

• Any decisions made on behalf of someone should aim to interfere with their beliefs as little as possible to respect their values (balancing autonomy with beneficence).

What is Fraser guidelines?

A legal principle used to assess whether a child (under 16) can receive confidential advice about contraception and sexual health without parental involvement.

How are Fraser guidelines assessed?

• Is the child mature and intelligent enough to understand the nature and implications of the treatment proposed?

• Is it impossible to persuade the child to persuade their parents, or let the doctor tell them? 

• Are they likely to begin or continue having sexual intercourse with or without contraception?

• Are their physical or mental health likely to suffer if they do not get the advice / treatment?

• Is the advice/treatment in their best interest?

What is an advanced directive?

A legal document that outlines a persons preferences for medical treatment in the event that they are unable to communicate their wishes.

What is a living will?

A written statement detailing a person’s desires regarding future medical treatment in circumstances where they are unable to express informed consent.

What is a Do Not Resuscitate (DNR)?

A directive to not perform CPR or other life saving measures in the case of a medical emergency.

What is lasting power of attorney?

Allows someone to appoint a trusted individual to make healthcare and welfare decisions on their behalf if they lose the capacity to do so.