The Capacity Conundrum

In the last post we considered 2 essential aspects of valid consent – it must be voluntary and informed and we also looked at how you record consent.

The 3rd essential element of valid consent is that the person has capacity to consent, this is the subject fot this post. It is not always a simple decision so you should have a clear understanding of capacity to inform your decision making.

What is capacity?

Capacity is the ability of a person to understand, retain and evaluate information to make and communicate a decision regarding their health needs and treatment options.

In this article I am going to discuss capacity in relation to adults, children and young people will be considered next week. The law varies slightly in the different regions of the UK. I am presenting the information for England but do check your local guidelines if you live elsewhere in the UK, particularly in Scotland.

Who has capacity?

The premise is to always start from a presumption that the person has capacity. You cannot presume a patient lacks capacity because of any of their characteristics such as age, disability or medical condition or if they make a decision you don’t agree with.

Who has incapacity?

Incapacity will be caused by a mental disorder or inability to communicate because of physical disability so the person cannot understand, retain or evaluate the information you provide or cannot communicate their decision.

Patients can be assisted to understand by taking time to explain issues and using simple language and visual aids as appropriate. Capacity may be temporarily affected by shock, pain, fatigue, medication, drugs or alcohol. It may be appropriate to defer decisions in these cases.

Assessments, decisions and discussions about capacity should be based on all available evidence and recorded in the patient’s record.

Standard A3 guidance clearly states that you must take all reasonable steps to assist patients who have difficulty communicating or understanding including using an interpreter if appropriate. It explicitly states that if you are unable to communicate sufficiently with the patient you should not treat them. This is a new aspect to the guidance.

There are some helpful scenarios and further explanation of capacity to consent in a document on the GOsC website. You could work through this document or discuss it with colleagues for CPD.  There is an over-tired woman with a baby, an elderly gentleman and a young person.

If you are faced with a situation where you have a patient that you deem lacks capacity there are a number of options. It may be that you need to spend more time explaining things to the patient in order to be sure they have capacity in relation to your proposals. Alternatively, you could refer them to their GP, you could contact family members, with permission, to gain more insight and see if someone has power of attorney in relation to health. You may need to seek advice from the iO if you are in doubt.

You need to make sure you keep clear records of your actions and decisions and your reasoning when determining someone’s capacity to consent.

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