Under the Mental Capacity Act 2005, A patient is deemed to be competent if he can be shown to:
- Comprehend and retain information that has been presented to him in a way that they understand
- Retain that information
- Be able to weigh up that information and use that to make an informed decision
- To communicate his decision (by any means e.g. blinking)
People aged 18 and over are presumed to have capacity unless proven otherwise.
Information must be communicated in a way and at a time that gives the person the best possible chance of taking it in. Lack of capacity needs to be shown for each individual decision that is made; it is not a generalised finding. (i.e. a patient may have capacity to consent to simple prodecures but not to more complicated ones)
If a person lacks capacity then a decision can be taken for them, in their best interests. Establishing a patient's best interests involves taking into account the patient's views and beliefs as well as the views of family and friends, although no one can consent to medical treatment on behalf of an adult lacking capacity. In some cases a patient may have foreseen a situation where medical decisions would need to be made when they themselves lacked capacity. In these instances they may have legally formalised their wishes through either an advanced decision or by nominating someone as having lasting power of attorney. Both legal tools if valid to the current scenario take priority when considering management decisions.
- Advance decisions/living wills -
Only applicable if they are up-to-date and specific to the decision being made. Advance decisions to withhold life-saving treatment such as DNARs must be in writing and signed by the patient and a witness. A decision can be considered invalid if there are unexpected circumstances which it is reasonably believed may have affected the patient's decision.
- Lasting Power of Attorney -
Given to an adult (or adults) with capacity by the patient. They need to be officially registered with the Office of the Public Guardian. They enable the nominated adult(s) to make decisions for them. It does not apply to life-saving treatment unless specifically stated. These powers can be revoked by a court if the person is shown not to be acting in the patient's best interests.
The principle of autonomy is paramount here. It is considered to override beneficence in a person with capacity (so they are entitled to make decisions that are not in their best interests). If a person does not have capacity, and has not made any decisions in advance or nominated a person to make decisions for them whilst they still had capacity, then beneficence is the most important principle (so decisions are made in their best interests).
Refusal to consent requires a much higher level of capacity. However if the medical professional believes that the person has capacity then the reasons for refusal can be rational, irrational or even non-existent, then the wishes of the patient should be respected.
There are very few exceptions to the right of refusal:
- Pregnancy: In Re S (1992) the courts ruled to have Caesarean section (a lifesaving procedure for the foetus) despite refusal from the woman on religious grounds. However in 1998 the judge in the case of St George's Healthcare NHS Trust vs S ruled that pregnant women retain the right to refuse treatment even if it is intended to benefit the unborn child.
- Minors: See below and child health section
- Undue influence: If a healthcare professional believes that the patient has been unduly influenced by a relative to refuse a life-saving treatment, then the doctor should ask for guidance from the courts
- Beauchamp and Childress. 1979 The Principles of biomedical ethics.
- Sidaway v. Bethlem Royal Hospital (1984) All Engl Law Rep. Feb 23; 1:1018-36.
- Gillick v West Norfolk and Wisbech Area Health Authority. 19884 All Engl Law Rep. 1984 Nov 19-Dec 20 (date of decision);1985(1):533-59.
- General Medical Council (UK). Ethical guidance: Confidentiality. October 2009.
- Beauchamp TL, Childress JF. Principles of biomedical ethics, 5th edn. Oxford: Oxford University Press 2001.
- W v. Egdell. All Eng Law Rep. 1989 Nov 9; 1:835-53.
- Her Majesty's Stationery Office (UK). The Data Protection Act (1998). 1998
- General Medical Council (UK). Confidentiality: Protecting and Providing Information. September 2000 .