In order for consent to be valid it must be given by someone with the capacity to consent.
‘Capacity’ refers to your patient’s ability to:
understand and retain information relevant to the decision required relating to their treatment or care;
weigh up the information provided and the options available (including the consequences of not consenting); and
communicate their decision (orally, by signing or by any other means of communication).
As a professional, you will need to assess whether your patient has the capacity to consent. Most adults are presumed to have the capacity to consent but there is a legal framework outlining how capacity is assessed in adults, young people and children across the UK. Please refer to our legal framework on the GOC’s website for further detail.
Your assessment of capacity should be objective and you should bear in mind the principle that, where possible, patients should be assisted to make informed decisions about their treatment and care.
You must not assume that a patient lacks capacity based just upon their age, disability, beliefs, condition or behaviour, or because they make a decision you disagree with.
You must make an assessment of your patient’s capacity based on their ability to make a specific decision at the time it needs to be made. There may be some circumstances where a patient may be capable of making some decisions but not others.
In some situations, a patient may be able to understand the relevant information if they are given an appropriate explanation, such as by using simpler language or visual aids. In these situations, the patient must be considered as having capacity and you must take reasonable steps to communicate the relevant information in a way the patient understands to enable them to consent (or not to consent).
You must not assume that because a patient lacks capacity on one occasion, or in relation to one type of service, that they lack capacity to make all decisions or the capacity to make decisions at all times.
A patient’s capacity to consent may be temporarily affected by a variety of other factors, for example, illness, prescribed medication, shock, panic, fatigue, confusion, pain or the effects of drugs or alcohol.
The existence of these factors should not lead to an automatic assumption that the patient does not have the capacity to consent. Instead you should use your professional judgement to make a decision based on all of the circumstances and the information reasonably available to you.
In some circumstances it may be appropriate to defer the decision until the temporary effects subside and capacity is restored.
When a patient lacks capacity
If your patient is not able to make decisions for themselves the law sets out the criteria and processes to be followed. This may also grant legal authority to certain people to make decisions on behalf of patients who lack capacity.
For more advice on when a patient lacks capacity please refer to our legal framework on the GOC’s website.
Further support and training
If you are unsure about a patient’s capacity, you should get advice from your employer, other senior colleagues, health and social care professionals or people involved in their care. If you are still unsure you may need to consult your professional or representative body or obtain legal advice. Any advice you get or assessments carried out should be accurately recorded, along with the outcome.
If you need to develop your skills in assessing capacity you should undertake further training as appropriate.