Being able to meet a patient’s individual needs for information to ensure a valid consent depends, in part, on the time and resources available to you and your colleagues in the organisations and systems where you work. Where there are pressures on your time, or resources are limited, you should consider:

1. the role other members of the team might play in providing information, with appropriate training and supervision
2. what other sources of information and support are available to the patient, such as trusted patient information leaflets, or support groups for people with specific conditions
3. use of technology, educational videos, and interactive online resources.

A patient’s capacity may vary from one day to the next, or depend on the decision they are being asked to make. You should not assume that just because the patient does not have capacity on one occasion, they lack the capacity to make all decisions.

Making decisions about treatment and care for patients who lack capacity is governed in:

1. England and Wales by the Mental Capacity Act 2005. The Act is supported by a Code of Practice for healthcare workers which you should refer to.²⁵⁰  A person lacks capacity if, at the time the decision needs to be made, they are unable to make or communicate the decision because of an ‘impairment or disturbance’ that affects the way their mind or brain works. Further information for those practising in England is available from the Department of Health.²⁵¹
2. Scotland by the Adults with Incapacity (Scotland) Act 2000.²⁵² The Act is supported by Codes of Practice for healthcare professionals which you should refer to.²⁵³ A person lacks capacity if they cannot make decisions or communicate them, or understand or remember their decision, because of a mental disorder or a physical inability to communicate in any form.
3. Northern Ireland by the Mental Capacity Act (Northern Ireland) 2016, which partially commenced in late 2019 (phase one – for deprivation of liberty, offences, research and money and valuables).²⁵⁴  The Act is supported by Codes of Practice for phase one of the implementation. A person lacks capacity if, at the time the decision needs to be made, they are unable to understand information, retain information, appreciate the relevance of the information or communicate their decision because of an impairment of, or a disturbance in, the function of the mind or brain. The timescales for implementing the remainder of the Act are as yet unclear, so you should seek legal advice if you have concerns about a person’s capacity to make decisions.

No one can make a decision on behalf of an adult who has capacity. If a patient asks you, or a relative or carer, to make decisions for them you should explain:

1. that it is still important that they understand the options
2. what the treatment or investigation will involve.

You must work on the presumption that every adult patient (over the age of 18) has the capacity to make decisions about their care, and to decide whether to agree to, or refuse, an examination, investigation or treatment.

You must regard a patient as lacking capacity only once it is clear that, having been given all appropriate help and support, they cannot understand, retain, use or weigh up the information needed to make that decision, or communicate their wishes.

You must not assume that a patient lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including mental illness), beliefs, apparent inability to communicate, or the fact that they make a decision with which you disagree.

A patient’s ability to make decisions may depend on the nature and severity of their condition, or the difficulty or complexity of the decision.

You must assess the patient’s capacity to make an informed decision about the treatment and then assess whether they are able to decide whether to have the treatment.

If the patient does not have capacity, the Mental Capacity Act 2005 in England and Wales, and the Mental Capacity Act (Northern Ireland) 2016, enables the patient to authorise someone who is over 18 years of age to make decisions for them under a Lasting Power of Attorney (LPA). Alternatively, someone who has authority to make treatment decisions for that person, as a court appointed deputy, can give consent.²⁵⁵ In Scotland, the Adults with Incapacity (Scotland) Act 2000 enables someone to hold Power of Attorney (PoA). The phrase ‘next of kin’ has no legal definition or status, and such a person cannot give or withhold consent on behalf of the patient.

There are two types of LPA. One that enables the attorney to make decisions regarding the patient’s property and one that enables the attorney to make decisions regarding the patient’s care or welfare. The care and welfare attorneys are called personal welfare LPAs in England and Wales, welfare PoAs in Scotland, and care, treatment and personal welfare LPAs in Northern Ireland. The attorney powers relating to the patient’s property are valid if the patient has capacity. However, the attorney powers relating to care or welfare only come into play if the patient lacks capacity, or the attorney reasonably believes the patient lacks capacity. If you are relying on someone who has an LPA or a PoA to give consent on behalf of your patient, you should keep a copy of the LPA or PoA document.

You must take account of the advice on assessing capacity in the Codes of Practice that accompany the Mental Capacity Act 2005, the Adults with Incapacity (Scotland) Act 2000, the Mental Capacity Act (Northern Ireland) 2016, and other relevant guidance. If your assessment is that the patient’s capacity is borderline, you must be able to show that it is more likely than not that they lack capacity.

The decision or action taken on behalf of the patient who lacks capacity must be in their best interests.

You should record in the patient notes your reasons for deciding that:

1. the treatment is in the patient’s best interests
2. the patient lacks capacity.

You should offer patients who are likely to have difficulty retaining information a written record of your discussions, and the decisions that were made.

If factors outside your control mean that patients aren’t given the time or support they need to understand relevant information, and if this compromises their ability to make informed decisions, you must consider raising a concern with your employer or system. You must also consider whether it is appropriate to proceed, as you must be satisfied that you have a patient’s consent or valid authority before providing treatment or care.

In an emergency, decisions may have to be made quickly so there’ll be less time to apply this guidance in detail, but the principles remain the same. You must presume a conscious patient has capacity to make decisions, and seek their consent before providing treatment or care.