The assessment of a patient’s capacity to make a decision about medical treatment is a matter for clinical judgement guided by professional practice and subject to legal requirements.
To demonstrate capacity individuals should be able to:
understand (with the use of communication aids, if appropriate) in simple language what the medical treatment is, its purpose and nature and why it is being proposed;
understand its principal benefits, risks and alternatives;
understand in broad terms what will be the consequences of not receiving the proposed treatment;
retain the information for long enough to use it and weigh it in the balance in order to arrive at a decision
Communicate the decision (by any means).
In order for the consent to be valid the patient must be able to make a free choice (i.e. free from pressure).
You must work on the presumption that every adult patient has the capacity to make decisions about their care, and to decide weather to agree to, or refuse an examination, investigation or treatment.
You must only regard a patient as lacking capacity once it is clear that, having given all appropriate help and support, they can not understand, retain, use or weigh up the information needed to make decision or communicate their wishes.
In England and Wales, the Mental Capacity Act allows people over 18 years of age, who have capacity, to make a Lasting Power of Attorney appointing a welfare attorney to make health and personal welfare decisions on their behalf once capacity is lost.
The Court of Protection may also appoint a deputy to make these decisions.
Neither welfare attorneys nor deputies can demand treatment which is clinically inappropriate.
Where there is no welfare attorney or deputy the doctor may treat a patient who lacks capacity, without consent, providing the treatment is necessary and in the patient’s best interests.
The Act also requires doctors to take into account, so far as is reasonable and practicable, the views of the patient’s primary carer.
In Scotland, the Adults with Incapacity (Scotland) Act allows people over 16 years of age to appoint a welfare attorney who has the power to give consent to medical treatment when the patient loses capacity.
The Court of Session may also appoint a welfare guardian on behalf of an incapacitated adult.
Neither welfare attorneys nor guardians can demand treatment which is judged to be against the patient’s interests.
Where there is no proxy decision maker, doctors have a general authority to treat a patient who is incapable of giving consent to the treatment in question.
The Act also requires doctors to take into account, so far as is reasonable and practicable, into the views of the patient’s nearest relative and his or her primary carer.
In Northern Ireland, no person can give consent to medical treatment on behalf of another adult. As the law currently stands, doctors may treat a patient who lacks capacity, without consent, providing the treatment is necessary and in the patient’s best interests
A number of factors should be addressed when considering what the patient best interest is, including:
The patient’s own wishes and values (where these can be ascertained), including any advance decision;
Clinical judgement about the effectiveness of the proposed treatment, particularly in relation to other options;
Where there is more than one option, which option is least restrictive of the patient’s future choices?
The likelihood and extent of any degree of improvement in the patient’s condition if treatment is provided;
The views of the parents, if the patient is a child;
the views of people close to the patient, especially close relatives, partners, carers, welfare attorneys, court-appointed deputies or guardians about what the patient is likely to see as beneficial; and
Any knowledge of the patient’s religious, cultural and other non-medical views that might have an impact on the patient’s wishes.
Advance refusals of treatment have long been legally binding under common law. Advance requests or authorisations have not had the same binding status but should be taken into account in assessing best interests.
Following the Burke case in 2005, it is accepted that there is a duty to take reasonable steps to keep the patient alive (e.g. by provision of artificial nutrition and hydration) where that is the patient’s known wish.
In England and Wales, advance decisions are covered by the Mental Capacity Act. Patients who are aged 18 or over who have capacity may make an advance refusal of treatment orally or in writing which will apply if they lose capacity.
To be valid and legally binding the advance decision must be specific about the treatment that is being refused and the circumstances in which the refusal will apply.
Where the patient’s advance decision relates to a refusal of life-prolonging treatment this must be recorded in writing and witnessed.
The patient must acknowledge in the written decision that they intend to refuse treatment even though this puts their life at risk.
In Scotland and Northern Ireland, advance decisions are not covered by statute but it is likely they are covered by common law.
An advance refusal of treatment is likely to be binding in Scotland and Northern Ireland if the patient was an adult at the time the decision was made (16 years old in Scotland and 18 years old in Northern Ireland).
The patient must have had capacity at the time the decision was made and the circumstances that have arisen must be those that were envisaged by the patient.
Patients have the right to expect that information about them will be held in confidence by their doctors.
In the legal perspective, it is in the public interest for the patient to be able to trust their doctor to maintain confidentialty.for this reason, this obligation is not absolute.
Information must be disclosed when there is statutory duty. Examples include:
notification of infectious disease
termination of pregnancy
birth and death
identification of a patient undergoing in vitro fertility treatment with donated gametes
identification of donor and recipient for transplanted organ
prevention, apprehension or prosecution of terrorist
police on request, name and address nut not clinical details
under court orders