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. 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 like a liver transplant, but still be able to comprehend the risks and benefits of diathermy to remove a wart.
The test of capacity currently applied in the Irish courts is the “C test”, which derives from the English case of Re C. 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:
- 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?
Presume that adults have the capacity to consent to or refuse a proposed treatment unless it can be established that they lack that capacity
Only the courts (or an official empowered by the court) 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 (see Box 3). 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.
Box 3: When a patient is incapacitated
“Where an adult patient is deemed to lack capacity to make a healthcare decision, you should take reasonable steps to find out whether any other person has legal authority to make decisions on the patient’s behalf [see editor’s note below]. If so, you should seek that person’s consent to the proposed treatment.
“If no other person has legal authority to make decisions on the patient’s
behalf, you will have to decide what action to take. In doing so, you should
consider:
- which treatment option would provide the best clinical benefit for the patient,
- the patient’s past and present wishes if they are known,
- whether the patient’s capacity is likely to increase,
- the views of other people close to the patient who may be familiar with the patient’s preferences, beliefs and values, and
- the views of other health professionals involved in the patient’s care.
Medical Council, Guide to Professional Conduct and Ethics for Registered
Medical Practitioners (2009), paras 34.5-6.
Editor’s note: This would only be if the patient has been made a Ward of Court, in which case you must obtain written consent from the case officer assigned to the Ward. If the proposed treatment is particularly intrusive or carries significant risks, the case officer may refer the matter to the court.