The five principles of the Mental Capacity Act:

• A person must be assumed to have capacity unless it is established that they lack capacity.
• 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.
• A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
• An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
• Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

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.

For more on Consent in healthcare, read our article here.

Both legislation and the GMC’s guidance emphasise that 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. While the general principles are the same across the UK, the actual test for capacity is slightly different, depending on the jurisdiction.

England and Wales

In England and Wales, the test of capacity is in two parts:

• Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?

• Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?

Scotland

In Scotland, incapacity is defined in the Adults with Incapacity (Scotland) Act 2000 as being incapable of any of the following:

• Acting
• Making a decision
• Communicating a decision
• Understanding a decision
• Retaining the memory of a decision

The Act does not set out a test of capacity, but says that incapacity “must be judged in relation to particular matters, and not as an ‘all or nothing’ generalisation”. The Scottish Government offers the following guidance for assessing capacity:

• Does the person have a mental disorder (which includes mental illness, learning disability, dementia and acquired brain injury), or severe communication difficulty because of a physical disability (such as a stroke or severe sensory impairment)? If so;

• has it made the person unable to make the decision or decisions in hand?

Northern Ireland

There is no specific legislation covering mental capacity in Northern Ireland. As such, the common-law test applies:

• 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?

There is no specific legislation covering mental capacity in Northern Ireland. As such, the common-law test applies.

The Mental Capacity Act Code of Practice:

The Mental Capacity Act Code of Practice contains guidance on assessing an individual’s ability to make a decision:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely consequences of making or not making this decision?
• Is the person able to understand, retain, use and weigh up the information relevant to this decision?
• Can the person communicate their decision (by talking, using sign language or other means)
• Would the services of a professional (such as a speech and language therapist) be helpful

And in more complex or serious decisions:

• Is there a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)?

Fluctuating capacity

Some patients are intermittently or temporarily unable to make a decision for themselves. It may be possible to wait until the patient has capacity or, where this is not the case, patients must be treated in accordance with their best interests or according to consent given by someone authorised to act on the patient’s behalf – someone with parental responsibility in the case of a minor, or a person with a personal welfare lasting power of attorney (a welfare attorney in Scotland).

Children and young people

In all aspects of caring for children, the child’s welfare is the paramount consideration. Patients under the age of 16 may or may not have the capacity to consent to treatment. The test of capacity in children is whether or not they are Gillick competent. If they are able to understand information about their condition and the implications of either proceeding with the proposed investigations or doing nothing, they should be considered competent to provide consent. In Scotland the test is contained in the Age of Legal Capacity (Scotland) Act 1991.

Who has parental responsibility?

Someone with parental responsibility may consent to treatment on behalf of a non-competent child up to the age of 18 in England, Wales and Northern Ireland and 16 in Scotland.

Unless she lacks capacity herself, a child’s mother automatically has parental responsibility. A father will have parental responsibility if any of the following conditions apply:

• He is married to the mother of his child (or was married to her at the time of the child’s birth).
• He has made a parental responsibility agreement with the mother.
• He has obtained a court order granting him parental responsibility. 
• The child was born after 15 April 2002 in Northern Ireland, 1 December 2003 in England or Wales, or 4 May 2006 in Scotland and the father is named on the child’s birth certificate.

Other individuals or organisations (such as Social Services) may be given parental responsibility by court order, or by being appointed as a guardian. Where the child is competent and there is a dispute you should seek advice.

Also see the GMC guidance, 0-18 Years: Guidance for All Doctors (2007), paras 22-41.

Unless patients have sufficient information, they are not in a position to decide what is best for them.

Provision of Information 

Provision of information is key to obtaining valid consent. Unless patients have sufficient information, they are not in a position to decide what is best for them. In Consent: Patients and Doctors Making Decisions Together (2008), the GMC has set out what patients ought to know before deciding whether to consent to treatment or an investigation.

Written information is not a substitute for detailed discussion with patients

Numerous studies have shown that patients retain comparatively little information given to them during a consultation, particularly if they are anxious or in pain. Many patients find it helpful if they are given written information as a reminder of the key points discussed. However, written information is not a substitute for detailed discussion with patients and must be seen as an adjunct to, not a replacement for, that discussion.

If information leaflets are used to augment discussion with a patient, this should be documented in the patient’s notes. Before sharing any literature with a patient, it should be checked to make sure that it is accurate and up to date.

In all aspects of caring for children, the child’s welfare is the paramount consideration. Patients under the age of 16 may or may not have the capacity to consent to treatment. The test of capacity in children is whether or not they are Gillick competent. If they are able to understand information about their condition and the implications of either proceeding with the proposed investigations or doing nothing, they should be considered competent to provide consent.

"Unless she lacks capacity herself, a child’s mother automatically has parental responsibility"