Chapter 31
Capacity to Consent to Treatment
281
, Chapter 31: Capacity to Consent to Treatment
A 50 year old man was admitted to hospital two days ago under the care of the surgical team. His left leg has
become increasingly more cold and discoloured. A dark grey/black colour began in the region of his toes and
gradually extended up his leg. Examination and investigations suggest that his leg is gangrenous. He refuses to sign
the consent form for amputation. Due to concerns that the patient’s mental health is negatively impacting on his
capacity, the surgical team has asked for a psychiatry assessment of his capacity to consent or to withhold consent
to the operation.
Introduction
Capacity
o Capacity means the ability to enter into a valid contract (i.e. to decide whether to undergo an operation or
other procedure).
o Capacity is gained in adulthood and is presumed to be present throughout the lifespan of the individual
unless permanently or temporarily lost. We must assume capacity to be present unless demonstrably
absent.
o Restore/improve capacity before acting against the person’s wishes (except in an emergency).
o To treat a person with capacity without consent would be an assault.
o Competent adults are entitled to refuse treatment even when it would clearly benefit their health.
Respect the right to be foolish if capacity is present. An exception to this rule would be where the person is
detained under the Mental Health Act 2001 and is obliged to comply with the treatment of a mental disorder.
o People can be considered to have the capacity to decide some aspects of their treatment but not others
(e.g. a person with severe learning difficulties may have the capacity to decide on their day-to-day
treatment but lack the capacity to understand the complexities of their long-term treatment). Capacity is
therefore not an all or nothing concept.
Best interests
o Acting in the best interests of a patient involves offering those treatments in which the possible
benefits outweigh any burdens or risks associated with the treatment and avoiding those treatments where
there is no net benefit to the patient.
o If a person lacks capacity, treatment can only be given taking into account the best interests of the patient.
o Take the least restrictive course of action consistent with the patient’s best interests.
o Act in the best interests of the patient (not the family’s or hospital’s interests).
Note: the Mental Health Act 2001 cannot be used to force a patient to have a medical or surgical procedure.
Consent
o It is necessary to provide sufficient information to patients before they can decide whether or not to give
their consent (e.g. information about the benefits and risks of the proposed treatment and alternative
treatments).
o It is important that the patient is given continuing opportunities to ask further questions and to review their
decision.
o Consent can be verbal, implied (e.g. raising your hand to indicate that you are happy for a nurse to take
blood), written (e.g. by signing a consent form).
o A signed consent form by itself does not constitute consent. It simply serves as evidence of consent. The
consent form will not be valid if the consent is not voluntary, not informed, and the person does not have
enough mental capacity to give consent.
Assessment of capacity: to have capacity the patient must be able to:
1. Understand the issue at hand. This involves an assessment of:
The patient’s understanding of the problem they have.
o “What do you understand about the problems that you are having?”
o “What have the doctors told you about the difficulties you are having?”
The patient’s understanding of the nature of the proposed procedure.
o “Do you know what the doctors believe should happen?”
o “What have you been told about the anaesthetic that would be used?”
The patient’s understanding of the purpose of the procedure.
o “Why do think that you might need the procedure?”
o “Why do the doctors think that you might need the procedure?”
The patient’s understanding of the risks of the procedure.
o “What have the doctors told you about the possible risks of the procedure?”
o “Do you think that the procedure might be painful?”
o “Do you think that the procedure might leave a scar?”
o “What do you think might be the most serious risk of having the procedure?”
282
Capacity to Consent to Treatment
281
, Chapter 31: Capacity to Consent to Treatment
A 50 year old man was admitted to hospital two days ago under the care of the surgical team. His left leg has
become increasingly more cold and discoloured. A dark grey/black colour began in the region of his toes and
gradually extended up his leg. Examination and investigations suggest that his leg is gangrenous. He refuses to sign
the consent form for amputation. Due to concerns that the patient’s mental health is negatively impacting on his
capacity, the surgical team has asked for a psychiatry assessment of his capacity to consent or to withhold consent
to the operation.
Introduction
Capacity
o Capacity means the ability to enter into a valid contract (i.e. to decide whether to undergo an operation or
other procedure).
o Capacity is gained in adulthood and is presumed to be present throughout the lifespan of the individual
unless permanently or temporarily lost. We must assume capacity to be present unless demonstrably
absent.
o Restore/improve capacity before acting against the person’s wishes (except in an emergency).
o To treat a person with capacity without consent would be an assault.
o Competent adults are entitled to refuse treatment even when it would clearly benefit their health.
Respect the right to be foolish if capacity is present. An exception to this rule would be where the person is
detained under the Mental Health Act 2001 and is obliged to comply with the treatment of a mental disorder.
o People can be considered to have the capacity to decide some aspects of their treatment but not others
(e.g. a person with severe learning difficulties may have the capacity to decide on their day-to-day
treatment but lack the capacity to understand the complexities of their long-term treatment). Capacity is
therefore not an all or nothing concept.
Best interests
o Acting in the best interests of a patient involves offering those treatments in which the possible
benefits outweigh any burdens or risks associated with the treatment and avoiding those treatments where
there is no net benefit to the patient.
o If a person lacks capacity, treatment can only be given taking into account the best interests of the patient.
o Take the least restrictive course of action consistent with the patient’s best interests.
o Act in the best interests of the patient (not the family’s or hospital’s interests).
Note: the Mental Health Act 2001 cannot be used to force a patient to have a medical or surgical procedure.
Consent
o It is necessary to provide sufficient information to patients before they can decide whether or not to give
their consent (e.g. information about the benefits and risks of the proposed treatment and alternative
treatments).
o It is important that the patient is given continuing opportunities to ask further questions and to review their
decision.
o Consent can be verbal, implied (e.g. raising your hand to indicate that you are happy for a nurse to take
blood), written (e.g. by signing a consent form).
o A signed consent form by itself does not constitute consent. It simply serves as evidence of consent. The
consent form will not be valid if the consent is not voluntary, not informed, and the person does not have
enough mental capacity to give consent.
Assessment of capacity: to have capacity the patient must be able to:
1. Understand the issue at hand. This involves an assessment of:
The patient’s understanding of the problem they have.
o “What do you understand about the problems that you are having?”
o “What have the doctors told you about the difficulties you are having?”
The patient’s understanding of the nature of the proposed procedure.
o “Do you know what the doctors believe should happen?”
o “What have you been told about the anaesthetic that would be used?”
The patient’s understanding of the purpose of the procedure.
o “Why do think that you might need the procedure?”
o “Why do the doctors think that you might need the procedure?”
The patient’s understanding of the risks of the procedure.
o “What have the doctors told you about the possible risks of the procedure?”
o “Do you think that the procedure might be painful?”
o “Do you think that the procedure might leave a scar?”
o “What do you think might be the most serious risk of having the procedure?”
282
