Dr Maria Dyban summarises important aspects of law and guidance for practitioners regarding patients who may be unable or less able to consent to treatment

 
  • Assessment of mental capacity should be based on the person’s ability to make a specific healthcare decision
  • Patients can be mentally competent to make some decisions, but not others 
  • People may lack mental capacity temporarily or permanently 
  • People with mental health conditions have the same right to accept or decline medical treatment as any other competent adult
  • Assessment of mental capacity is a two-stage process 
  • Treatment of a mentally incompetent patient should be based on the best interests of such a patient
  • In an emergency when the patient is unable to consent, lifesaving treatment should be provided if it is in the best interest of the patient
  • Consent to treatment for an incompetent minor is given by people who have parental responsibility
  • You can assume that a young person has capacity to consent at the age of 16 years
  • A child under the age of 16 years may have capacity to consent if they are mature enough to understand what is involved in the proposed treatment and can weigh up the options
  • If a competent child refuses treatment, his decision cannot be overridden by his parents
  • If a competent child refuses lifesaving treatment, legal advice should be sought.

In last month’s article,1 we looked at the reasons for obtaining informed consent, the patient’s right to self-determination, the different types of consent, and the clinician’s liability. This article explores consent to treatment for specific groups of people who may be less able to consent, for example:

  • mentally incompetent adults
  • unconscious patients
  • people with mental health conditions
  • competent minors

Mentally incompetent adults

Every adult is presumed to have mental capacity and an assessment of capacity should only be made if a clinician has any reasons to doubt it. The patient can be mentally competent to make some decisions regarding their care, but may be incompetent to make other healthcare decisions. An assessment of a patient’s mental capacity should be based on their ability to make a specific decision, but not their ability to make decisions in general.

Assessing mental capacity

Assessment of mental capacity is a two-stage process. Firstly, the practitioner needs to establish whether the patient has any ‘… impairment of, or a disturbance in the functioning of, the mind or brain’.2 If no such disturbance is found, then the person does not lack capacity under the Mental Capacity Act 2005; if, however, such a disturbance is found, then you can proceed to the second stage, to assess whether the person is mentally competent or mentally incompetent to make a decision about treatment:3

… a person is unable to make a decision for himself if he is unable—

  • (a) to understand the information relevant to the decision,
  • (b) to retain that information,
  • (c) to use or weigh that information as part of the process of making the decision, or
  • (d) to communicate his decision (whether by talking, using sign language or any other means).

A person can lose their mental capacity temporarily or permanently. There are some conditions in which mental capacity can fluctuate, for example during the delusional phase of psychotic illness or when a person is in pain or distress.4 All reasonable steps must be taken to assist a person in making the relevant decision.5

Examples of impairment or disturbance in functioning of mind or brain may include the following:6

  • conditions associated with some forms of mental illness
  • dementia
  • significant learning disabilities
  • the long-term effects of brain damage
  • physical or medical conditions that cause confusion, drowsiness, or loss of consciousness
  • delirium
  • concussion following a head injury
  • the symptoms of alcohol or drug use.

Mentally incompetent patients

If the patient is found to be mentally incompetent, the physician must act in the person’s best interests, considering his or her past and present wishes, feelings, beliefs, values, and other factors.7 The General Medical Council (GMC) guidance Consent: patients and doctors making decisions together provides a non-exhaustive list of factors to be taken into account when deciding on the best interests of the patient.8 The clinician must be aware of any advance decisions and advance statements made by the person prior to their loss of mental capacity. In England and Wales, a competent person can appoint a donee (or donees) of lasting power of attorney (welfare attorney in Scotland) in case of future mental incapacity, who can make decisions regarding their medical treatment at times when the person has lost mental capacity.9,10

Unconscious patients and life-sustaining treatment

According to the Human Rights Act 1998, Articles 2 and 8,11 the State has a positive obligation to preserve the patient’s life, and that obligation should be balanced against the patient’s right to self-determination. In cases of emergency, when the patient is unable to consent, life-saving treatment should be provided if it is in the best interest of the patient.12 Examples of life-saving treatment would be defibrillation in cases of cardiac arrest, or administering basic life support when someone is choking. In an unconscious patient, consent can be presumed on the grounds that if the patient were conscious, he or she would consent to his or her life being saved in the way proposed.13 Alternatively, you can apply the ‘necessity principle’ where your actions are justified if a resulting good outweighs the consequences of adhering to the law.

Civil or criminal liability cannot be imposed for treatment without consent if there are no other means of achieving the end result and the patient has made no known objections to the treatment.13 This principle only applies to procedures that are necessary for the patient’s survival and when it is unreasonable to postpone the treatment; it does not cover additional procedures carried out for convenience.14 For example, if a woman needs to have emergency abdominal surgery to save her life following a traffic accident, then a doctor cannot remove an ovarian cyst found incidentally during the operation. In such circumstances, it is preferable for the treatment of the ovarian cyst to be postponed until the patient is able to give informed consent.

According to the Mental Capacity Act 2005, s 6(7),15 the clinician can provide life-sustaining treatment or perform ‘... any act which he reasonably believes to be necessary to prevent a serious deterioration in [another person’s] condition, while a decision as respects any relevant issue is sought from the court.

People with mental health conditions

Re C16 was one of the first cases decided prior to the Mental Capacity Act 2005 where refusal of medical treatment by a mentally competent adult was respected. The case concerned a 68-year-old detained mental health patient who had foot gangrene, but refused leg amputation. The patient was found to be mentally competent regarding this decision and his refusal was respected. Therefore, people with mental health conditions have the same right to accept or decline proposed medical treatment as any other competent adult. However, refusal of treatment or admission to a hospital for a mental disorder can be overridden if a person is detained under the Mental Health Act 1983, Part IV.17

People with certain health disorders can lack mental capacity to make a decision about their medical care either permanently or temporarily. For example, in some cases of delusions, mania, or severe depression, the Mental Capacity Act can be used to assess whether the person can understand, retain, weigh up and communicate information relevant to the decision.18 If a person is unable to do the above and has a disturbance in functioning of their mind, then such a person lacks mental capacity.

Competent minors

Parental responsibility

In Hewer v Bryant, Lord Denning MR stated:19

‘The common law can, and should, keep pace with the times. It should declare … that the legal right of a parent to the custody of a child ends at the eighteenth birthday, and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.’

Section 3 of the Children Act 198920 defines ‘parental responsibility’ as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’ Parental responsibilities include the duty to seek medical assistance for a child under the age of 16 years, as well as the responsibility to consent to treatment on a child’s behalf.

Mothers and married fathers have parental responsibility. Parents do not lose parental responsibility if they get divorced, but they lose it if a child is adopted. If a child is taken into the care of a local authority under a care order, then parents share parental responsibility with the local authority. Unmarried fathers have parental responsibility if the father is named on the child’s birth certificate of children registered since 15 April 2002 in Northern Ireland, since 1 December 2003 in England and Wales and since 4 May 2006 in Scotland.21 You should seek legal advice if you are not sure who holds parental responsibility.

Children and consent

The Family Law Reform Act 196922 and General Medical Council guidance23 state that you can assume that a young person has capacity to consent when they reach 16 years of age.

A child under the age of 16 years may have capacity to consent if he/she is mature enough to understand what is involved in the proposed treatment and can weigh up the options.24 Remember that a young person may have capacity to consent to some simple procedures, but may not have capacity to consent to other more complex matters involving high risks or serious consequences.25

Contraceptive services can be provided to a young person under the age of 16 years without parental knowledge if they are ‘Gillick26 competent’, that is:27

  • ‘(a) they understand all aspects of the advice and its implications
  • (b) you cannot persuade the young person to tell their parents or to allow you to tell them
  • (c) in relation to contraception and STIs, the young person is very likely to have sex with or without such treatment
  • (d) their physical or mental health is likely to suffer unless they receive such advice or treatment, and
  • (e) it is in the best interests of the young person to receive the advice and treatment without parental knowledge or consent.’

If a competent child refuses to have a particular treatment, his decision cannot be overridden by his parents. If you think such treatment could save his life or prevent his condition from deteriorating, you should involve members of a multidisciplinary team and an independent advocate, or designated doctor for child protection and seek legal advice.28 The same steps should be taken if parents refuse treatment that is in the best interests of a child who lacks capacity.

Treatment to prevent serious deterioration in cases of emergency can be provided to a child or young person without consent.29

Summary

In cases where a patient is found to be mentally incompetent, the physician must act in his or her best interests, which includes providing life-saving treatment in cases of emergency. People with mental health conditions have the same right to accept or decline proposed medical treatment as any other competent adult. It can be assumed that a young person has capacity to consent when they reach 16 years of age; children below that age may have capacity to consent if they are mature enough to understand what is involved in the proposed treatment.

  1. Dyban M. Valid consent protects the practitioner as well as the patient. Guidelines in Practice. October 2014. Available at: www.guidelinesinpractice.co.uk/oct_14_Dyban_safety
  2. Mental Capacity Act 2005, s 2. Available at www.legislation.gov.uk/ukpga/2005/9/section/2 (accessed 16 October 2014).
  3. Mental Capacity Act 2005, s 3. Available at www.legislation.gov.uk/ukpga/2005/9/section/3 (accessed 16 October 2014).
  4. Mental Capacity Act 2005 Code of Practice. London: The Stationery Office, 2007: para 4.26. Available at www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act (accessed 16 October 2014).
  5. Re AK (adult patient: medical treatment) [2001] 1 FLR 129. Available at: www.4pb.com/case-detail/re-ak-medical-treatment-consent (accessed 16 October 2014).
  6. Mental Capacity Act 2005 Code of Practice. London: The Stationery Office, 2007: para 4.12. Available at www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act (accessed 16 October 2014).
  7. Mental Capacity Act 2005, s 4(6). Available at: www.legislation.gov.uk/ukpga/2005/9/section/4 (accessed 16 October 2014).
  8. General Medical Council. Consent: patients and doctors making decisions together. London: GMC, 2008: paras 75–76. Available at: www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp (accessed 15 October 2014).
  9. Dyban M. GPs need to advise patients on options for future incapacity. Guidelines in Practice. April 2013 . Available at: www.guidelinesinpractice.co.uk/apr_13_dyban_incapacity_apr13#.VD-s0r6FbHg
  10. Mental Capacity Act 2005, ss 9–14. Available at: www.legislation.gov.uk/ukpga/2005/9/part/1/crossheading/lasting-powers-of-attorney 
  11. Human Rights Act 1998, Sch 1, Pt I, arts 2 and 8. Available at: www.legislation.gov.uk/ukpga/1998/42/schedule/1 
  12. General Medical Council. Consent: patients and doctors making decisions together. London: GMC, 2008, para 79. Available at: www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp (accessed 15 October 2014).
  13. Mason J, Laurie G. Mason and McCall Smith’s law and medical ethics. 8th edn. Oxford: Oxford University Press, 2011: p.66.
  14. General Medical Council. Consent: patients and doctors making decisions together. London: GMC, 2008: para 79. Available at: www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp (accessed 15 October 2014). 
  15. Mental Capacity Act 2005, s 6(7). Available at: www.legislation.gov.uk/ukpga/2005/9/section/6
  16. Re C (adult, refusal of treatment) [1994] 1 WLR 290.
  17. Mental Health Act 1983, Pt IV. Available at: www.legislation.gov.uk/ukpga/1983/20/part/IV
  18. Mental Capacity Act 2005, s 3(1). Available at: www.legislation.gov.uk/ukpga/2005/9/section/3
  19. Hewer v Bryant [1970] 1 QB 357 at 369, per Lord Denning MR.
  20. Children Act 1989, s 3. Available at: www.legislation.gov.uk/ukpga/1989/41/section/3 
  21. General Medical Council. Protecting children and young people: The responsibilities of all doctors. London: GMC, 2012: pp.51–52. Available at: www.gmc-uk.org/guidance/ethical_guidance/13257.asp (accessed 15 October 2014).
  22. Family Law Reform Act 1969, s 8. Available at www.legislation.gov.uk/ukpga/1969/46 (accessed 16 October 2014).
  23. General Medical Council. 0–18 years: guidance for all doctors. London: GMC, 2007: para 25. Available at: www.gmc-uk.org/guidance/ethical_guidance/children_guidance_index.asp (accessed 15 October 2014).
  24. General Medical Council. 0–18 years: guidance for all doctors. London: GMC, 2007: paras 25–26. Available at: www.gmc-uk.org/guidance/ethical_guidance/children_guidance_index.asp (accessed 15 October 2014). 
  25. General Medical Council. Protecting children and young people: The responsibilities of all doctors. London: GMC, 2012: p.48. Available at: www.gmc-uk.org/guidance/ethical_guidance/13257.asp (accessed 15 October 2014).
  26. Gillick v West Norfolk and Wisbech AHA [1986] AC 112. Available at www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_common_law.asp (accessed 16 October 2014).
  27. General Medical Council. 0–18 years: guidance for all doctors. London: GMC, 2007: para 70. Available at: www.gmc-uk.org/guidance/ethical_guidance/children_guidance_index.asp (accessed 15 October 2014). 
  28. General Medical Council. 0–18 years: guidance for all doctors. London: GMC, 2007: paras 31–33. Available at: www.gmc-uk.org/guidance/ethical_guidance/children_guidance_index.asp (accessed 15 October 2014). 
  29. General Medical Council. 0–18 years: guidance for all doctors. London: GMC, 2007: para 22. Available at: www.gmc-uk.org/guidance/ethical_guidance/children_guidance_index.asp (accessed 15 October 2014). G