Downloads
- Mental Capacity Asessment Template
- Consent form for minor surgery
- Consent form for joint injections
- MPS fact sheets on consent (including children)
- DoH: Consent for examination or treatment (Advanced Directives @ chapter 1; paragraph 19).
- DoH: Seeking consent – working with children
- NHS Response Line 08701 555 455 for advice on consent issues
ASHCROFT LEADS
- Doctor: Dr Khan & Dr Albazi
- Nurse: –
- Admin: Chris Rushton
DATE REVIEWED:
21st July 2022
DATE OF NEXT REVIEW:
July 2023
The Policy/Protocol
Patients have a fundamental legal and ethical right to determine what happens to their own bodies. Valid consent to treatment is therefore absolutely central in all forms of healthcare, from providing personal care to undertaking major surgery. Seeking consent is also a matter of common courtesy between health professionals and patients.
This policy focuses on providing a robust system that ensures that valid consent is appropriately and effectively sought when required for all contacts with patients and for the use of any patient confidential information as and when routinely requested in clinical practice.
And this policy applies to all staff who should familiarise themselves with it. Failure to comply with the policy could potentially lead to disciplinary action.
The 5 key principles underpinning the Mental Health Act
- A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
- The right for individuals to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
- That individuals must retain the right to make what might be seen as eccentric or unwise decisions;
- Best interests – anything done for or on behalf of people without capacity must be in their best interests; and
- Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms
What is consent?
“Consent” is a patient’s agreement for a health professional to provide care. Patients may indicate consent non-verbally (for example by presenting their arm for their pulse to be taken), orally, or in writing. For the consent to be valid, the patient must:
- be competent to take the particular decision;
- have received sufficient information to take it; and
- not be acting under duress.
The context of consent can take many different forms, ranging from the active request by a patient for a particular treatment (which may or may not be appropriate or available) to the passive acceptance of a health professional’s advice. In some cases, the health professional will suggest a particular form of treatment or investigation and after discussion the patient may agree to accept it. In these cases, ‘seeking consent’ is better described as ‘joint decision- making’: the patient and health professional need to come to an agreement on the best way forward, based on the patient’s values and preferences and the health professional’s clinical knowledge.
If a patient has the mental capacity, they can either
- consent to treatment
- refuse treatment
What consent is and isn’t
Consent is often wrongly equated with a patient’s signature on a consent form. A signature on a form is evidence that the patient has given consent, but is not proof of valid consent. If a patient is rushed into signing a form, on the basis of too little information, the consent may not be valid, despite the signature.
In some cases, a patient can make a decision to consent straight away (like the taking of a blood sample, allowing the physio to work on them). In other cases, patients need time to make a decision. Try and allow for this – you may need to meet several times for further discussions.
If a patient has given valid verbal consent, the fact that they are physically unable to sign the form is no bar to treatment. Patients may, if they wish, withdraw consent after they have signed a form: the signature is evidence of the process of consent-giving, not a binding contract. Health professionals must take into consideration whether the patient has had sufficient chance to absorb the information necessary for them to make their decision.
A patient can only consent if they have the mental capacity to do so.
All patients will be assumed to have capacity. An assessment must take place where capacity is in doubt. Where an adult patient lacks the mental capacity (either temporarily or permanently) to give or withhold consent for themselves, no-one else can give consent on their behalf. However, treatment may be given if it is in their best interests, as long as it has not been refused in advance in a valid and applicable advance directive.
Frequently Asked Questions (FAQs)
- Before you examine, treat or care for competent adult patients you must obtain their consent.
- Adults are always assumed to be competent unless demonstrated otherwise. If you have doubts about their competence, the question to ask is: “can this patient understand and weigh up the information needed to make this decision?” Unexpected decisions do not prove the patient is incompetent, but may indicate a need for further information or explanation.
- Patients may be competent to make some health care decisions, even if they are not competent to make others.
- Giving and obtaining consent is usually a process, not a one-off event. Patients can change their minds and withdraw consent at any time. If there is any doubt, you should always check that the patient still consents to your caring for or treating them.
Basically do they satisfy the following 4 questions…
- Can the patient understand the information relevant to the decision?
- Do you consider the patient to be able to retain the information relevant to the decision?
- Is the patient able to use or weigh up the pros and cons to make a decision?
- Is the patient able to communicate their decision?
Patients need sufficient information before they can decide whether to give their consent: for example information about the benefits and risks of the proposed treatment, and alternative treatments. If the patient is not offered as much information as they reasonably need to make their decision, and in a form they can understand, their consent may not be valid.
It is always best for the person actually treating the patient to seek the patient’s consent. However, you may seek consent on behalf of colleagues if you are capable of performing the procedure in question, or if you have been specially trained to seek consent for that procedure.
- No-one can give consent on behalf of an incompetent adult. However, you may still treat such a patient if the treatment would be in their best interests. ‘Best interests’ go wider than best medical interests, to include factors such as the wishes and beliefs of the patient when competent, their current wishes, their general well-being and their spiritual and religious welfare. People close to the patient may be able to give you information on some of these factors. Where the patient has never been competent, relatives, carers and friends may be best placed to advise on the patient’s needs and preferences.
- If an incompetent patient has clearly indicated in the past, while competent, that they would refuse treatment in certain circumstances (an ‘advance refusal’), and those circumstances arise, you must abide by that refusal.
- Before examining, treating or caring for a child, you must also seek consent.
- Young people aged 16 and 17 are presumed to have the competence to give consent for themselves.
- Younger children who understand fully what is involved in the proposed procedure can also give consent (although their parents will ideally be involved).
- In other cases, someone with parental responsibility must give consent on the child’s behalf, unless they cannot be reached in an emergency.
- If a competent child consents to treatment, a parent cannot override that consent.
- Legally, a parent CAN consent if a competent child refuses, but it is likely that taking such a serious step will be rare.
- Document why you feel the patient lacks capacity in the medical notes.
- Be careful if the patient has communication difficulties. A difficulty to communicate DOES NOT automatically mean that the patient cannot consent!
- Individuals have a right to the support of an Independent Mental Capacity Advocate (IMCA). An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. The IMCA makes representations about the person’s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary. Get the IMCA involved.
- Occasionally, there will not be a consensus on whether a particular treatment is in an incapacitated adult’s best interests. Where the consequences of having, or not having, the treatment is potentially serious, a court declaration may be sought. In this type of case, the Clinical Risk Manager should be contacted directly to arrange the necessary legal advice and support
Consent must be given voluntarily: not under any form of duress or undue influence from health professionals, family or friends. Unless of course it is an emergency AND the patient is unconscious – see below…
Rely on oral consent if they are awake and can communicate. Still try to provide the right balance of information. If the patient is unconscious and unable to communicate, do what you feel is in the best interests of the patient. Record it in the notes.
No: consent can be written, oral or non-verbal. A signature on a consent form does not itself prove the consent is valid – the point of the form is to record the patient’s decision, and also increasingly the discussions that have taken place. Your Trust or organisation may have a policy setting out when you need to obtain written consent.
It is rarely a legal requirement to seek written consent, but it is good practice todo so if any of the following circumstances apply:
- the treatment or procedure is complex, or involves significant risks (the term ‘risk’ is used throughout to refer to any adverse outcome, including those which some health professionals would describe as ‘side-effects’ or ‘complications’)
- the procedure involves general/regional anaesthesia or sedation
- providing clinical care is not the primary purpose of the procedure
- there may be significant consequences for the patient’s employment, social or personal life
- the treatment is part of a project or programme of research approved by BACHS
- child hood immunisation
- private circumcision work where male circumcision only remains lawful if both parents consent.
But they still need verbal consent. An example of a low risk procedure is taking a blood test or attending to personal care.
Providing they have mental capacity, get them to make a mark instead of a signature and get it witness. If they can’t make a mark for physical reasons, document thoroughly verbal consent. If consent has been validly given, the lack of a completed form is no bar to treatment.
- Be careful if the patient has communication difficulties. A difficulty to communicate DOES NOT automatically mean that the patient cannot consent!
- Find an alternative means of communication. Written rather than verbal for example. Using pictorial materials etc. Remember, many people can’t read. So, provide audiotapes rather than leaflets.
- Involve appropriate colleagues – eg specialist learning disability teams, speech and language therapists.
- Ultimately, the patient should be assisted to make and communicate their own decision
- Consider using bi-lingual workers in the practice.
- Better still, use the language line or get a language interpreter into a dedicated future consultation.
- Be careful of using relatives – especially children – because they may not communicate things how you exactly want them to.
- To discuss complex needs call Ghazala Kazmi on 01274 237618
- Requests for an interpreter should be made to Liz Weatherill on 01274 237616.
- If these numbers are unavailable please contact the main switchboard on 0845 1115000
- Everyone has their own values, beliefs, preferences and attitude to risk, which may not be the same as those of other people. So, even if a person makes a decision which others, including their family and friends, regard as unwise, unusual or irrational, this does not necessarily mean that the person lacks capacity to make that decision.
- If after discussing all possible options, the patient still refuses and has mental capacity, then accept their decision and record it thoroughly in the notes.
- Make sure they understand the pros and cons of their decision.
- You should also ensure that the patient realises they are free to change their mind and accept treatment if they later wish to do so. Where delay may affect their treatment choices, they should be advised accordingly.
- If a patient consents to a particular procedure but refuses certain aspects of the intervention, you must explain to the patient the possible consequences of their partial refusal. If you genuinely believe that the procedure cannot be safely carried out under the patient’s stipulated conditions, you are not obliged to perform it. You must, however, continue to provide any other appropriate care
THE MENTAL CAPACITY ACT 2005 – an overview
The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations, and how they should go about this. It enables people to plan ahead for a time when they may lose capacity. Guidance on the Act will be provided in a Code of Practice. People who are placed under a duty to have regard to the Code include those working in a professional capacity e.g. doctors and social workers. A draft was made available to assist Parliamentary consideration of the Bill and is available on the DCA website at
http://www.dca.gov.uk/menincap/legis.htm (under “Mental Capacity Bill and supporting documents”).
5 key principles underpinning the Act
- A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
- The right for individuals to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
- That individuals must retain the right to make what might be seen as eccentric or unwise decisions;
- Best interests – anything done for or on behalf of people without capacity must be in their best interests; and
- Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms
What does the Act do?
The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It replaces current statutory schemes for enduring powers of attorney and Court of Protection receivers with reformed and updated schemes.
The Act deals with the assessment of a person’s capacity and acts by carers of those who lack capacity.
Assessing lack of capacity
The Act sets out a single clear test for assessing whether a person lacks capacity totake a particular decision at a particular time. It is a “decision-specific” test. No onecan be labelled ‘incapable’ as a result of a particular medical condition or diagnosis.Section 2 of the Act makes it clear that a lack of capacity cannot be established merely by reference to a person’s age, appearance, or any condition or aspect of a person’s behaviour which might lead others to make unjustified assumptions about capacity.
Best Interests
Everything that is done for or on behalf of a person who lacks capacity must be in that person’s best interests. The Act provides a checklist of factors that decisionmakers must work through in deciding what is in a person’s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, carers and family members gain a right to be consulted.
Acts in connection with care or treatment
Section 5 clarifies that, where a person is providing care or treatment for someone who lacks capacity, then the person can provide the care without incurring legal liability. The key will be proper assessment of capacity and best interests. This will cover actions that would otherwise result in a civil wrong or crime if someone has to interfere with the person’s body or property in the ordinary course of caring. For example, by giving an injection or by using the person’s money to buy items for them.
Restraint/deprivation of liberty
Section 6 of the Act defines restraint as the use or threat of force where an incapacitated person resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person, and if the restraint used is proportionate to the likelihood and seriousness of the harm. Section 6(5) makes it clear that an act depriving a person of his or her liberty within the meaning of Article 5(1) of the European Convention on Human Rights cannot be an act to which section 5 provides any protection.
The Department of Health and National Assembly for Wales have each issued interim advice to the NHS and local authorities on the implications of the European Court of Human Rights judgment in HL v United Kingdom (the “Bournewood” case), pending the development of proposals for new procedural safeguards for the protection of those people falling within the “Bournewood gap”.
The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity
Lasting powers of attorney (LPAs)
The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA), but the Act also allows people to let an attorney make health and welfare decisions.
Court appointed deputies
The Act provides for a system of court appointed deputies to replace the currentsystem of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and financial matters as authorised by the Court but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues.
The Act creates two new public bodies to support the statutory framework, both of which will be designed around the needs of those who lack capacity
A new Court of Protection
The new Court will have jurisdiction relating to the whole Act and will be the final arbiter for capacity matters. It will have its own procedures and nominated judges.
A new Public Guardian
The Public Guardian and his/her staff will be the registering authority for LPAs and deputies.
They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating. A Public Guardian Board will be appointed to scrutinise and review the way in which the Public Guardian discharges his/her functions. The Public Guardian will be required to produce an Annual Report about the discharge of his/her functions.
The Act also includes three further key provisions to protect vulnerable people
Independent Mental Capacity Advocate (IMCA)
An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. The IMCA makes representations about the person’s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.
Consent from a patient is required for any clinical examination, investigation and/or treatment. The patient who is of sound mind has a right to determine what they want for themselves. Communication (and having a real good dialogue) is the most important skill for helping a patient to decide what they want and thus obtaining valid consent.
Question 1
It is a legal requirement to obtain a signed consent form prior to any surgical procedure?
False. This is not a legal requirement. It is however good practice. Clearly in emergencies there would be no time to seek consent.
Question 2
A patient’s signature on a consent form automatically means he or she has given valid consent.
False. Before a patient can give valid consent, you must offer a good explanation of what is going on and the pros and cons involved. You need to build up a good dialogue and weigh up the alternatives. There must be no coercion.
Question 3
If the patient is provided with an information leaflet about the procedure there is no need for you to provide further explanation.
False. Leaflets are adjuncts. A discussion still needs to happen. There are other types of decision aids available – for example, look at http://www.nnt.co.uk . NICE have some great patient decision aids.
Question 4
A patient has a right to refuse treatment or withdraw consent to treatment during a procedure.
True. A patient is allowed to change their mind. It is their choice. However if they do change their mind, you must explain the consequences of this and discuss further.
Question 5
A patient has the option of nominating a person to make certain decisions on his or her behalf, when he or she is no longer has the capacity to do so.
True. This will require a legal power of attorney (LPA).
Question 6
A child under 16 cannot consent to medical or surgical treatment.
False. If they are Gillick competent then they can consent. However this can be overridden by the parent or doctor depending on whether the child is consenting to the procedure or consenting out of the procedure. So – if a child wants treatment and is Gillick competent, then you or the parents cannot override that decision. However if a child refuses treatment, the parent or doctor can override their decision even if they are Gillick competent.
Question 7
If a patient tells you in confidence that he or she is HIV positive but does not want you to document this in his or her medical records then you have to comply with the request.
False. You have to document it in their medical records because it’s an important medical condition. However you can put it in a private area of the clinical record.
Question 8
A father can only give consent to treatment for his child if he is married to the mother.
False. If the father is mentioned on the birth certificate then he can give consent. This means he does not need to be married to the mother. However, it does put an onus on you to check the birth certificate (how often do we do this when a dad brings in a child?).
Question 9
A healthcare professional must comply with a patient valid advance decision to refuse treatment (ADRT).
True. It is a legal document. Going against an ADRT is a criminal offence. However, in an ADRT, a patient can only opt out of something. They can’t request to be opted in.
Question 10
You do not need the patient’s consent for a student to be present at a consultation if they are only observing.
False.
Question 11
For blood screening you do not need to inform the patient of all the specific tests being done.
False. A patient has a right to know exactly what is being done to them.
Question 12
It states in the practice leaflet that the practice takes part in research and may use patient details – this is adequate consent?
False. You must provide a get out clause for patients to opt out.
Question 13
Your practice is planning to use text messaging to remind patients of their forthcoming appointment. You need to obtain specific consent in order to contact patients by text.
True. However you can either individually ask patients to ‘consent in’ or you can ask patients to individually ‘consent out’.
Question 14
If a patient has provided written consent for his or her medical information to be given to a solicitor, it is acceptable to send a photocopy of the entire patient’s medical record.
False. You must redact (blackout) any information that is in excess of what the solicitor needs to see or in excess of what has been consented to.
Question 15
Only intimate examinations require specific consent
False. It is good practice to routinely ask patients before doing something to them. And it is common human decency and shows respect.
Specific Situations
- Explanations
- Explain the procedure, how long it will take, how they will feel afterward.
- Explain what will happen after the procedure, how long recovery takes.
- Explain the pros and cons of the procedure. Try and quantify the risks.
- Sometimes, patients don’t want to know everything and put their faith in the health professional. Where the patient makes clear (verbally or non-verbally) that they do not wish to be given this level of information, this should be documented.
- Ask them: ‘Do you have any concerns or fears?’ Consent is not just about a yes/no answer – create true dialogue before you get there.
- Take written consent.
- On the day of the procedure, double check that the patient is still happy to go ahead and record in the notes (or take written consent if not already done so).
- Remember, patients are allowed to change their minds – provide the space for them to do that. For example, take consent way before the patient is prepared for treatment (eg before they gowned up or are placed on the minor surgery bed).
- Also remember, the health professional carrying out the procedure is ultimately ultimately responsible for ensuring that the patient is genuinely consenting to what is being done: it is they who will be held responsible in law if this is challenged later. So, if you are doing the procedure, try and take the consent yourself.
- Do not take consent on behalf of other health professionals if you feel out of your depth to do so.
- Don’t automatically assume all patients with Dementia lack capacity to consent.
- Patients with Dementia vary through out the day in terms of their mental clarity/confusion.
- Try and speak to patients with dementia when they are most likely to be at their mental best – for example: during the day rather than at night time, when the room is not crowded with people, in the presence of someone they know and trust.
- Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.
- Photographic and video recordings which are made for treating or assessing a patient must not be used for any purpose other than the patient’s care or the audit of that care, without the express consent of the patient or a person with parental responsibility for the patient.
- If you wish to use such a recording for education, publication or research purposes, you must seek consent in writing, ensuring that the person giving consent is fully aware of the possible uses of the material.
- In particular, the person must be made aware that you may not be able to control future use of the material once it has been placed in the public domain. If a child is not willing for a recording to be used, you must not use it, even if a person with parental responsibility consents.
- Photographic and video recordings, made for treating or assessing a patient and from which there is no possibility that the patient might be recognised, may be used within the clinical setting for education or research purposes without express consent from the patient, as long as this policy is well publicised. However, express consent must be sought for any form of publication.
- If you wish to make a photographic or video recording of a patient specifically for education, publication or research purposes, you must first seek their written consent (or where appropriate that of a person with parental responsibility) to make the recording, and then seek their consent to use it. Patients must know that they are free to stop the recording at any time and that they are entitled to view it if they wish, before deciding whether to give consent to its use. If the patient decides that they are not happy for any recording to be used, it must be destroyed. As with recordings made with therapeutic intent, patients must receive full information on the possible future uses of the recording, including the fact that it may not be possible to withdraw it once it is in the public domain.
- If the patient is likely to be permanently unable to give or withhold consent for a recording to be made, you should seek the agreement of some-one close to the patient. You must not make any use of the recording which might be against the interests of the patient. You should also not make, or use, any such recording if the purpose of the recording could equally well be met by recording patients who are able to give or withhold consent.
- All photographic materials must be stored in compliance with information governance policies. All photographic evidence with patient identifiable information should be destroyed and not held on personal computers.
- There is a specific consent form to be used for clinical photography and conventional or digital video recordings.
- Patients should be asked if they object to being observed or treated by students. It should be clearly stated that all patients have the right to refuse without detriment to the care they receive. Clear processes within individual services should be developed.
- It is good practice to include this information in patient information leaflets, appointment cards etc and on posters in waiting and ward areas, if services regularly take students.
- Patients must also know the identity and status of the student(s) who are carrying out the assessment or treatment. If a student is required to see a patient on an unsupervised one to one basis he/she must introduce him/herself and first gain permission of the patient to the consultation.
- Patients should be advised in good time that the member of staff would like to bring students and have the opportunity to refuse, ideally prior to clinic appointment or procedure.
- It is advised that not more than one student per client is recommended per consultation.
- In general, the clinical audit process requiring access to clinical information, including case notes, may be carried out within BACHS, without explicit consent, provided that the staff operate within a robust Confidentiality Code of Conduct. All clinical audits should be registered via BACHS intranet on the QLIC project portal to enable the Quality Improvement & Patient Safety Facilitators to review all applications which will be judged for other requirements for consent.
- The Data Protection Act, should however, always be borne in mind, in that ‘information cannot be used for any other purpose than that for which it was intended’ unless consent has been obtained.
- Written consent is required from the patients taking part in research projects. The nature and purpose and what is known about the effects of any procedure(s) involved must be fully explained to the patient. The fact that the patient is participating in the project and the information that has been given to them, must be noted in the case notes. This is monitored when the West Yorkshire primary Care research and development unit is sponsor. All research must have been approved by the local research ethics committee. For people unable to write their consent an assent form must be provided.
- Within NHS Bradford and Airedale is the West Yorkshire Primary Care Research & Development Unit which hosts Research Governance & Management across NHS Bradford and Airedale. The R & D Unit has processes in place to ensure that no Research Governance approval is given unless there is written evidence of a consent form, patient information sheet and full ethical approval has been obtained.
- It is BACHS’ responsibility to ensure that information is available to the population it serves to inform patients of the potential for sharing of information in order to ensure seamless care in the primary care setting; this should be explained to the patient to provide an opportunity to refuse.
- Employees are responsible for reiterating this information as required. Patient consent to this information being shared should be in line with NHSBA guidance for handling patient information: http://nww.bradfordairedalepct. nhs.uk/NR/rdonlyres/58BE05B7-2818-44AF-9569- F28FCAB5C2CF/57700/GuidanceLeafletforstaffhandlingpatientinformation.pdfData
- Many health professionals will be involved in an individual patient’s care (sometimes at several hospitals and clinics) and this will require the sharing of information about the diagnosis and treatment. Discussion may take place in multi-disciplinary team meetings when x-rays, scans, photographs of specimens or microscopic slides may be shown. Some information will be used in the monitoring of health care provision and to plan services for patients and this may require data exchange with other NHS organisations such as cancer registries.
Education & Training
THE MENTAL CAPACITY ACT 2005 – an overview
The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations, and how they should go about this. It enables people to plan ahead for a time when they may lose capacity. Guidance on the Act will be provided in a Code of Practice. People who are placed under a duty to have regard to the Code include those working in a professional capacity e.g. doctors and social workers. A draft was made available to assist Parliamentary consideration of the Bill and is available on the DCA website at
http://www.dca.gov.uk/menincap/legis.htm (under “Mental Capacity Bill and supporting documents”).
5 key principles underpinning the Act
- A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
- The right for individuals to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
- That individuals must retain the right to make what might be seen as eccentric or unwise decisions;
- Best interests – anything done for or on behalf of people without capacity must be in their best interests; and
- Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms
What does the Act do?
The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It replaces current statutory schemes for enduring powers of attorney and Court of Protection receivers with reformed and updated schemes.
The Act deals with the assessment of a person’s capacity and acts by carers of those who lack capacity.
Assessing lack of capacity
The Act sets out a single clear test for assessing whether a person lacks capacity totake a particular decision at a particular time. It is a “decision-specific” test. No onecan be labelled ‘incapable’ as a result of a particular medical condition or diagnosis.Section 2 of the Act makes it clear that a lack of capacity cannot be established merely by reference to a person’s age, appearance, or any condition or aspect of a person’s behaviour which might lead others to make unjustified assumptions about capacity.
Best Interests
Everything that is done for or on behalf of a person who lacks capacity must be in that person’s best interests. The Act provides a checklist of factors that decisionmakers must work through in deciding what is in a person’s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, carers and family members gain a right to be consulted.
Acts in connection with care or treatment
Section 5 clarifies that, where a person is providing care or treatment for someone who lacks capacity, then the person can provide the care without incurring legal liability. The key will be proper assessment of capacity and best interests. This will cover actions that would otherwise result in a civil wrong or crime if someone has to interfere with the person’s body or property in the ordinary course of caring. For example, by giving an injection or by using the person’s money to buy items for them.
Restraint/deprivation of liberty
Section 6 of the Act defines restraint as the use or threat of force where an incapacitated person resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person, and if the restraint used is proportionate to the likelihood and seriousness of the harm. Section 6(5) makes it clear that an act depriving a person of his or her liberty within the meaning of Article 5(1) of the European Convention on Human Rights cannot be an act to which section 5 provides any protection.
The Department of Health and National Assembly for Wales have each issued interim advice to the NHS and local authorities on the implications of the European Court of Human Rights judgment in HL v United Kingdom (the “Bournewood” case), pending the development of proposals for new procedural safeguards for the protection of those people falling within the “Bournewood gap”.
The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity
Lasting powers of attorney (LPAs)
The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA), but the Act also allows people to let an attorney make health and welfare decisions.
Court appointed deputies
The Act provides for a system of court appointed deputies to replace the currentsystem of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and financial matters as authorised by the Court but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues.
The Act creates two new public bodies to support the statutory framework, both of which will be designed around the needs of those who lack capacity
A new Court of Protection
The new Court will have jurisdiction relating to the whole Act and will be the final arbiter for capacity matters. It will have its own procedures and nominated judges.
A new Public Guardian
The Public Guardian and his/her staff will be the registering authority for LPAs and deputies.
They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating. A Public Guardian Board will be appointed to scrutinise and review the way in which the Public Guardian discharges his/her functions. The Public Guardian will be required to produce an Annual Report about the discharge of his/her functions.
The Act also includes three further key provisions to protect vulnerable people
Independent Mental Capacity Advocate (IMCA)
An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. The IMCA makes representations about the person’s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.
Consent from a patient is required for any clinical examination, investigation and/or treatment. The patient who is of sound mind has a right to determine what they want for themselves. Communication (and having a real good dialogue) is the most important skill for helping a patient to decide what they want and thus obtaining valid consent.
- Question 1: It is a legal requirement to obtain a signed consent form prior to any surgical procedure?
- Question 2: A patient’s signature on a consent form automatically means he or she has given valid consent.
- Question 3: If the patient is provided with an information leaflet about the procedure there is no need for you to provide further explanation.
- Question 4: A patient has a right to refuse treatment or withdraw consent to treatment during a procedure.
- Question 5: A patient has the option of nominating a person to make certain decisions on his or her behalf, when he or she is no longer has the capacity to do so.
- Question 6: A child under 16 cannot consent to medical or surgical treatment.
- Question 7: If a patient tells you in confidence that he or she is HIV positive but does not want you to document this in his or her medical records then you have to comply with the request.
- Question 8: A father can only give consent to treatment for his child if he is married to the mother.
- Question 9: A healthcare professional must comply with a patient valid advance decision to refuse treatment (ADRT).
- Question 10: You do not need the patient’s consent for a student to be present at a consultation if they are only observing.
- Question 11: For blood screening you do not need to inform the patient of all the specific tests being done.
- Question 12: It states in the practice leaflet that the practice takes part in research and may use patient details – this is adequate consent?
- Question 13: Your practice is planning to use text messaging to remind patients of their forthcoming appointment. You need to obtain specific consent in order to contact patients by text.
- Question 14: If a patient has provided written consent for his or her medical information to be given to a solicitor, it is acceptable to send a photocopy of the entire patient’s medical record.
- Question 15: Only intimate examinations require specific consent
ANSWERS
- Question 1: It is a legal requirement to obtain a signed consent form prior to any surgical procedure?
False. This is not a legal requirement. It is however good practice. Clearly in emergencies there would be no time to seek consent. - Question 2: A patient’s signature on a consent form automatically means he or she has given valid consent.
False. Before a patient can give valid consent, you must offer a good explanation of what is going on and the pros and cons involved. You need to build up a good dialogue and weigh up the alternatives. There must be no coercion. - Question 3: If the patient is provided with an information leaflet about the procedure there is no need for you to provide further explanation.
False. Leaflets are adjuncts. A discussion still needs to happen. There are other types of decision aids available – for example, look at http://www.nnt.co.uk . NICE have some great patient decision aids. - Question 4: A patient has a right to refuse treatment or withdraw consent to treatment during a procedure.
True. A patient is allowed to change their mind. It is their choice. However if they do change their mind, you must explain the consequences of this and discuss further. - Question 5: A patient has the option of nominating a person to make certain decisions on his or her behalf, when he or she is no longer has the capacity to do so.
True. This will require a legal power of attorney (LPA). - Question 6: A child under 16 cannot consent to medical or surgical treatment.
False. If they are Gillick competent then they can consent. However this can be overridden by the parent or doctor depending on whether the child is consenting to the procedure or consenting out of the procedure. So – if a child wants treatment and is Gillick competent, then you or the parents cannot override that decision. However if a child refuses treatment, the parent or doctor can override their decision even if they are Gillick competent. - Question 7: If a patient tells you in confidence that he or she is HIV positive but does not want you to document this in his or her medical records then you have to comply with the request.
False. You have to document it in their medical records because it’s an important medical condition. However you can put it in a private area of the clinical record. - Question 8: A father can only give consent to treatment for his child if he is married to the mother.
False. If the father is mentioned on the birth certificate then he can give consent. This means he does not need to be married to the mother. However, it does put an onus on you to check the birth certificate (how often do we do this when a dad brings in a child?). - Question 9: A healthcare professional must comply with a patient valid advance decision to refuse treatment (ADRT).
True. It is a legal document. Going against an ADRT is a criminal offence. However, in an ADRT, a patient can only opt out of something. They can’t request to be opted in. - Question 10: You do not need the patient’s consent for a student to be present at a consultation if they are only observing.
False. - Question 11: For blood screening you do not need to inform the patient of all the specific tests being done.
False. A patient has a right to know exactly what is being done to them. - Question 12: It states in the practice leaflet that the practice takes part in research and may use patient details – this is adequate consent?
False. You must provide a get out clause for patients to opt out. - Question 13: Your practice is planning to use text messaging to remind patients of their forthcoming appointment. You need to obtain specific consent in order to contact patients by text.
True. However you can either individually ask patients to ‘consent in’ or you can ask patients to individually ‘consent out’. - Question 14: If a patient has provided written consent for his or her medical information to be given to a solicitor, it is acceptable to send a photocopy of the entire patient’s medical record.
False. You must redact (blackout) any information that is in excess of what the solicitor needs to see or in excess of what has been consented to. - Question 15: Only intimate examinations require specific consent
False. It is good practice to routinely ask patients before doing something to them. And it is common human decency and shows respect.