Discuss the concepts of consent and capacity and give examples of case law in respect to capacity (especially adults lacking capacity), how to assess capacity and the best interests of the patients.
Consent is the principle that a person must give their permission before they receive any type of treatment. Consent is required from a patient regardless of the treatment type being undertaken. Patients do not have to undergo treatment because a healthcare professional thinks it is appropriate however individuals retain the right to choose whether or not to have their bodily integrity interfered with. For consent to be valid, it must be voluntarily and informed, and the person consenting must have the capacity to make the decision. Appropriate consent to treatment would normally require an individual undergoing treatment to have legal capacity and competence to give consent which the consent is the free expression of that individuals will and the individual has been provided with enough information for that consent to be given. Although completion of a consent form is in most cases not a legal requirement, written consent can also serve as evidence of valid consent. It is good practice however to use consent forms where an intervention such as surgery if to be undertaken. Where there is any doubt about the person’s capacity, it is important, before the person is asked to sign the form, to establish both that they have the capacity to consent to the intervention and that they have received enough information to enable valid consent to be given. Details of the assessment of capacity, and the conclusion reached, should be recorded in the case notes. If the person has capacity, but is unable to read or write, they may be able to make their mark on the form to indicate consent. It would be good practice for the mark seeking consent to be witnessed by a person other than the clinician seeking consent, and for the fact that the person has chosen to make their mark in this way to be recorded in the case notes. Similarly, if the person has capacity, and wishes to give consent, but is physically unable to mark the form, this fact should be recorded in the notes. Or, the person can direct someone to sign the form on their behalf, but there is no legal requirement for them to do so. If consent has been given validly, the lack of a completed form is no bar to treatment, but a form can be important evidence of such consent. Consent may also be expressed verbally or non-verbally. An example of non-verbal consent would be where a person, after receiving appropriate information, holds out an arm for their blood pressure to be taken. However, the person must have understood what examination or treatment is intended, and why, for such consent to be valid. It is good practice to obtain written consent for any significant procedure, such as a surgical operation or when the person participates in a research project or a video recording.
All adults are presumed to have sufficient capacity to decide on their own medical treatment unless there is evidence to suggest otherwise, Capacity is the ability to use and understand information to make a decision and communicate any decision made. If a person lacks capacity their mind is impaired in some way which therefore means the person is unable to make a decision. This may include adults who suffer from Dementia, or bipolar disorder. It can also include patients who have severe learning disabilities or physical or mental conditions which cause certain symptoms like confusion, loss of consciousness. Patients can also lack capacity if they suffer from intoxication from drug and alcohol misuse. A patient with such an impairment is thought to be unable to make a decision therefore lacking capacity to understand information about a decision, use information to make a decision, or communicate their decision by talking. It is however possible for capacity to change over time therefore at each intervention capacity should be assessed at the time consent is required. This would normally need to be done by an appropriately trained and experienced health professional who is either advising of the treatment or carrying out the investigation. If it is found that the patient has the capacity to give consent then the patients decision would be accepted even if the patient tends to lose capacity at a later stage. If it is found that the patient does not have capacity to give consent and no one has been appointed to make decisions for the patient then the health professional would carefully consider what is in the best interest of the patient. The health professional at this point will need to consider whether it is safe to wait until the patient can give consent at a later stage if they regain capacity. It may also be beneficial at this point for the health professional to consider informing an independent mental capacity advocate if there is no family or friends appointed to make a decision on the patient’s behalf. The mental capacity act introduced a duty on NHS bodies to instruct an independent mental capacity advocate (IMCA). The act allows people to plan ahead for a time when they may not have the capacity to make their own decision. It also allows them to appoint a personal welfare attorney to make health decisions including mental treatments, on their behalf or to make an advance decision to refuse medical treatment. The mental capacity act 2005 came into full force in 2007. It primarily sets out a statutory framework for making decisions for people who lack the capacity to make such decisions for themselves. The act establishes main principles governing these decisions setting out who can make them and when. It also makes out legal requirements for assessing whether or not a person lacks the capacity to make a decision.