14 Consent and Capacity
14.1 Consent
Before embarking on the management of a competent patient, it is a legal and ethical requirement that the doctor must gain the patient’s informed consent. No matter how well meaning, any doctor who touches a competent patient without adequately informed consent may be found guilty of an offence, the so-called tort of negligence. Respect for the principle of autonomy and self-determination underlies the process of consent and so the reductive act of simply getting the patient to ‘sign the consent form’ is not sufficient. Rather, gaining consent is a process that begins at the first meeting of doctor and patient and should encourage the two-way exchange of information until a suitable management plan is agreed.
To be legally valid, consent must be informed. This means that the patients must understand their options, including the option for no treatment. They must be apprised of the intended benefits and inherent risks of any proposed course of action. It is the doctor’s duty to ensure that the patient understands the relevant information and this means that its delivery will need to be tailored according to each individual patient.
Consent need not always be written; verbal or implied consent are both valid. For example, if a person verbally agrees to nasendoscopy and sits still for the procedure, the doctor may continue in good faith. However, although written consent is not a legal requirement for all medical interventions, it does provide supporting evidence of the discussion and decision-making process.
The General Medical Council (GMC) advises that written consent should be taken in case of the following:
1. The investigation or treatment is complex or involves significant risks.
2. There may be significant consequences for the patient’s employment, or social or personal life.
3. Providing clinical care is not the primary purpose of the investigation or treatment.
4. The treatment is part of a research programme or is an innovative treatment designed specifically for the patient’s benefit.
14.2 Capacity
A patient must have capacity to give valid consent. Unfortunately, there is no standardised test to ascertain capacity and its assessment is largely subjective. The assessment process described in Re C is widely accepted and so a patient is deemed to have capacity if he or she can:
1. Understand and retain the treatment information (they only need to be able to retain this information for long enough to use it to make a decision).
2. Believe that the information provided is true.
3. Weigh the information in the balance and use it to make a decision.
4. Communicate this decision.
Capacity is not an, ‘all-or-nothing’ state and so a patient’s ability to make a choice may depend on how complex the factors involved in the decision are. Simple choices with minimal consequences may be reached by those who have limited ability for complex analysis, while increasingly complicated decisions associated with greater risks demand ever-increasing degrees of capacity. A person who has capacity has the right of absolute autonomy over his or her body and may refuse investigation or treatment even if this might seem illogical or result in dire consequences.
Assessing a patient’s capacity can be a daunting task as the implications can be significant. A useful tool to help with this task is the Mental Capacity Act (MCA) and MHA Decision Pathways smart-phone app produced by the ethics committee at Imperial College Healthcare NHS Trust. The app is free to download and leads the clinician, stepwise, through the process of assessment.
14.3 Patients Who Lack Capacity
14.3.1 Minors
For patients under 16 years of age, consent to treatment must be given on their behalf by the adult with parental responsibility. However, a minor may be deemed to have capacity if he or she is able to comply with the four-step process described above. Children who meet this standard are often referred to as being ‘Gillick competent’. This term originates from the case of Gillick v West Norfolk and Wisbech in which Lord Scarman’s reasoning formed the basis of the test of capacity in children:
‘As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.’
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