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Evaluation article: Consent and mental capacity

Published: Thursday, 19 June 2014

How can you assess whether a service user has the mental capacity to make their own decisions? Martin Hodgson sheds some light on this complex area.

The concepts of ‘consent’ and ‘mental capacity’ are vital ones in the provision of adult social care. 

Consent represents an agreement between the person receiving care and those responsible for its provision that nothing will be done to them without their permission and agreement. This is a vital concept in order to build trust in a care relationship.

Without the concept of consent, and its accompanying duty of confidentiality, there would be no trust and care would be impossible to provide. Those receiving care simply must be able to trust that those responsible for their care respect their choices and decisions.

Informed consent

A key concept is that consent must be in the form of ‘informed consent’. This means that a service user being asked to give their consent for a procedure or for a care package must have adequate information given to them so they can understand all the issues involved and weigh up the pros and cons in order to make a valid decision.

If somebody is not given adequate information, or does not understand the information, then it will be impossible for them to come to an informed decision.

Consent and the Mental Capacity Act

Another vital issue relating to consent is the ability of the person involved to make an informed decision in the first place. This is especially important in the care of people in adult social care with conditions such as dementia that affect their powers of reasoning and cognition. In such cases the person may be incapable of making an informed decision, even if they have adequate information, and will rely on others making choices and decisions for them.

Where such a person does not have the mental capacity to make their own decisions, including giving consent, they may be described as ‘lacking capacity’ and their rights are protected by the Mental Capacity Act. The Act defines ‘mental capacity’ as the ability to make a decision. A person lacks capacity under the Act if he or she is unable to make a decision, the inability being caused by an impediment or disturbance of the mind or brain, whether temporary or permanent. 

The Act grants such people protection from others making treatment decisions against their wishes and against their best interests. To achieve this it sets out five key principles.

The 5 key principles of the MCA

The Mental Capacity Act includes five key principles which must be followed by all care professionals 
and staff:

  1. Adults must be assumed to have the capacity to make decisions for themselves unless proved otherwise.
  2. Individuals must be given all available support before it is concluded that they cannot make decisions for themselves.
  3. Individuals must retain the right to make what might be seen as eccentric or unwise decisions.
  4. Anything done for or on behalf of individuals without capacity must be in their best interests.
  5. Anything done on or on behalf of individuals without capacity should restrict their rights and basic freedoms as little as possible.

Taken together, these principles mean that if a person lacks the capacity to give or withhold consent, health and social care professionals must act in their best interests at all times.

All staff involved in the care and treatment of a person who may lack capacity must show that they understand the rights of the person under the law and that they have assessed the person’s capacity appropriately.

Assessing the capacity to give consent

How does a care provider know whether or not a service user lacks capacity? The Act sets out a two-stage test for assessing whether a person has or lacks the capacity to make an informed consent decision at a particular time. 

The two-stage test asks:

  • is there an impairment of, or disturbance in, the functioning of the person’s mind or brain?
  • if so, is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?

The test needs to be applied for each specific decision. Care staff should never just ‘assume’ that someone is incapable of making a decision and no one can be labelled ‘incapable’ as a result of a particular medical condition or diagnosis.

In addition, the Act also 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 that might lead others to make unjustified assumptions about capacity. In this way the Act protects people from having ill-considered decisions made about them.

Those assessing capacity must remember that an unwise or irrational decision made by the service user does not of itself indicate a lack of capacity. Most people will be able to make most decisions, even when they have a label or diagnosis that may seem to imply that they do not have mental capacity. Indeed, the 2-stage test must be used and be shown to have been used.

It is particularly important that providers understand that a person’s capacity may change over time depending upon the decision to be made and the individual circumstances.

Toolkit

Use the following item in the toolkit to put the ideas in this article into practice:

About the author

Martin Hodgson, RMN, BSc, MSc, PGCEA, is a community psychiatric nurse and a psychology graduate by background, Martin has had a long career working as a senior manager in various health agencies, initially to do with mental health and latterly to do with primary and community care.

This article was first published in the April 2011 issue of Quality & Compliance Magazine.

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