A question of capacity

Medicolegal advisor, Dr John Holden addresses some dilemmas on consent that may be faced by GPs.

The MDU receives more than 25,000 queries every year, many of which concern consent and assessment of a patient's capacity to give consent. There are a number of dilemmas that may be faced by GPs in this area.

Legal and ethical

Doctors must assume that adult patients have the capacity to make decisions about their care, unless otherwise established.This is an underlying principle of the Mental Capacity Act 2005 (MCA), which came into force in 2007 and which governs how doctors should treat patients who lack capacity.

The MCA largely reflects common law and good practice. Sections 2 and 3 of the MCA provide the definition of capacity and the ability to make a decision. Chapter 4 of the accompanying Code of Practice gives detailed guidance.

Two-stage test

The code summarises a two-stage test for capacity:

  • Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind works? (It does not matter whether the impairment of disturbance is temporary or permanent)
  • If so, does that impairment or disturbance mean that the person is unable to make the decision in question at that time?

When assessing that ability of a patient to make the decision in question you then need to consider if the patient is able to:

  • Understand the information relevant to the decision, including information about the reasonably foreseeable consequences of deciding one way or another, or failing to make a decision.
  • Retain that information.
  • Use that information as part of the process of making the decision
  • Communicate his or her decision - whether by talking, using sign language or any other means.

If any of these four criteria cannot be met, then the patient is unable to make a decision and as such is unable to consent to the procedure in question.

Conversely, where the patient meets the criteria then they must be deemed to have the capacity to make their own decision and you must respect their decision even if it means they refuse treatment.

Capacity dilemmas
Issues surrounding patients' capacity are rarely straightforward, as the following fictional dilemmas, based on calls to the MDU's advice line, illustrate.

It is often a good idea to seek help from an experienced colleague or contact your medical defence organisation for specific advice.

Q: One of my patients, a 70-year-old woman with learning difficulties, had a fall and broke her hip. While in hospital to have her hip pinned and plated, it was decided that she lacked capacity to consent to the treatment.

This week, I visited the residential home where she lives and while she is now up and about, the staff said she was still in some pain. I examined the patient and offered to prescribe her some painkillers but she refused. Given her capacity is in doubt, was I right to accept her decision?

While a patient may not have the capacity to give consent for a complicated aspect of their treatment, this does not mean they cannot consent for other aspects of their care.

Section 2 of the MCA states that lack of capacity cannot be established merely by reference to age or appearance, or an aspect of behaviour that might lead others to make unjustified assumptions.

Section 1 of the MCA states that 'a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success'.

If you believe that the patient passes the two-stage test for capacity set out in the MCA and is able to understand the decision she was being asked to make on this occasion, including the possible implications, she has the right to refuse treatment and this should be documented in the clinical notes.

Q: One of my patients has been diagnosed with breast cancer and has undergone a lumpectomy and radiotherapy. However, despite her consultant recommending a course of chemotherapy, she is refusing further treatment.

She has been suffering from severe depression and I'm not sure she has capacity to make this decision. What should I do?

Section 1 of the MCA states that 'a person is not to be treated as unable to make a decision merely because he makes an unwise decision'.

Section 2.10 of the Code of Practice expands on this statutory principle by explaining that everybody has their own values, beliefs and attitudes and that a person should not be assumed to lack the capacity to make a decision just because other people think their decision is unwise.

The code indicates that this applies even in a situation where family members, friends or healthcare staff are unhappy with a decision.

If having spoken to the patient, you believe she meets the criteria for capacity set out in the MCA, she has the right to refuse treatment, whether or not you agree with her decision.

You may also wish to discuss the refusal with her consultant, who can then speak with the patient about the implications.

Dr Holden is a medico-legal adviser with the MDU

Learning points

Assessing capacity

1. Work on the basis that every adult has the ability to decide how to proceed with their treatment, unless it is shown that they cannot understand information presented in a clear way.

2. The MCA two-stage test may be used to assess capacity.

3. Consider if the patient is able to understand and retain information, and if they are able to communicate their decision to you.

4. Patients have the right to refuse treatment, even if you do not agree with their decision.

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