Autonomy and the right to self-determination are fundamental to the doctor-patient relationship. Consent is therefore required before any examination, investigation or treatment. Failure to obtain consent could open the doctor to a criminal charge of assault or battery, or a finding of misconduct by the regulator.

Age and Capacity

The legal age of capacity in England, Wales and Northern Ireland is 18 years, when an individual is assumed to be a competent adult capable of consenting to or refusing treatment, unless other factors prevent them from making informed decisions. The Family Law Reform Act 1969 made provisions for those aged 16 and 17 years; asserting the presumption that the majority of young people had capacity to provide affirmative consent (assent) to investigation or treatment deemed in their best interests, but that could be overruled in exceptional circumstances. In Scotland the age of consent is 16.

Assessment of Mental Capacity

This can be carried out by any clinician not just psychiatrists or consultants, and must follow the principles set down within the Mental Capacity Act (MCA) 2005. There is a presumption that adults have capacity to make decisions, and therefore unless there is evidence to the contrary, this would be the starting point. Capacity is time and decision-specific, so someone may lack capacity to make one decision but be able to make another. The assessment is in two parts:

• Does the person have ‘impairment of, or a disturbance in the functioning of, the mind or brain’? It does not matter whether this is temporary or permanent.
• Does the impairment mean that the person cannot make the decision in question at the time it needs to be made?

The capacity to make an informed decision depends on the patient:

• Understanding and believing the information relevant to the decision
• Retaining the information
• Using the information to weigh up the pros and cons
• Communicating the decision (although this does not have to be verbally)

A patient is not treated as lacking capacity simply because the doctor or family thinks the decision is unwise.

The Unconscious Patient or Those that Lack Capacity

In these circumstances, the doctor needs to act in the patient's ‘best interests’. The MCA and accompanying code of practice put an onus on the doctor to consult widely to discover whether the patient has any previously expressed wishes. The doctor should avoid making assumptions about the person's past quality of life. If a decision can wait, and it is anticipated that the individual will gain capacity, then the decision should be deferred to allow the patient to decide for themselves. If the decision cannot wait, you should consult the following if they exist:

• Anyone previously named by the patient to consult if they lose capacity
• A close relative or carer
• An attorney appointed under the Lasting Power of Attorney
• Any deputy appointed under the Court of Protection

All reasoning at arriving at a decision should be recorded. This should include who was spoken to and what information was considered. Whilst any medical decisions rest with the doctor, if there is disagreement between you and an attorney under the Lasting Power of Attorney or a family member, and the decision can be safely deferred without harm to the patient then the doctor can:

• Involve an independent medical capacity advocate (IMCA; see below) to act on behalf of the person who lacks capacity to make the decision
• Get a second opinion
• Hold a formal or informal ‘best interests’ case conference
• Attempt some form of mediation
• Ultimately, if all other attempts to resolve the dispute have failed, the Court of Protection may need to be involved. You would need to approach your hospital solicitors.

The General Medical Council (UK) has issued guidance on decision making when a patient may lack capacity, in relation to treatment and care towards the end of life, summarized in Figure 111.1.

Self-Harm

A particular challenge is those patients who present having attempted suicide. You cannot assume that this action renders an individual incapable of making decisions for themselves, and therefore a rapid assessment of capacity in relation to the specific treatment is required. As discussed, a competent adult may refuse life-saving treatment. If they lack capacity, then treatment can be given in their best interests. It is important that assessments and decision making is clearly documented.

There is often confusion between the Mental Health Act and Mental Capacity Act (Table 111.1) The Mental Health Act can be used to detain a patient, should they have a mental health disorder that puts themselves or others at risk of serious harm, but it only allows for the assessment and treatment of the mental illness, and does not allow all medical investigations and treatment. If a patient presents with a possible psychiatric condition, they may require treatment for the condition and therefore close liaison with the psychiatric team would be advisable.

Independent Mental Capacity Advocates (Imca)

In the acute setting, if time allows, an IMCA may need to be involved with a patient who lacks capacity for decision making, when there is no one else appropriate to consult except paid staff. The MCA code of practice describes three decisions:

• Providing, withholding or stopping serious medical treatment
• Placing people into accommodation (for example a care home or a long-stay hospital)
• Moving people to different long-stay accommodation

If in doubt, you should discuss your thoughts with an IMCA.

Advance Directives

There is no set format for an advance directive. It is valid and should be respected if:

• It is written or verbal (unless concerning life-sustaining treatment, in which case it must be written)
• It is applicable to the specific situation in hand
• The person lacks the capacity to make a decision at the time of consideration

An advance directive cannot refuse basic care to keep the patient comfortable, but can refuse artificial nutrition and hydration, and other life-sustaining treatment. It must be:

• Written and signed by the patient
• Signed by a witness
• Include a clear statement that the person understands the risk of refusing the treatment
• Be applicable to the specific clinical setting in hand

Lasting Power of Attorney

An individual may appoint a Lasting Power of Attorney (LPA) to make decisions on their behalf when they no longer have capacity. There are two types of LPA: (1) Financial and Property; (2) Personal Welfare. An attorney holding a Personal Welfare LPA can make medical decisions on behalf of a patient if:

• The patient does not have capacity to make the specific decision
• There is no advanced directive, made by the patient, about this particular decision
• It does not relate to life-sustaining treatment
• The patient is not detained under the Mental Health Act

They cannot however:

• Demand treatment that the medical staff feel is inappropriate
• Prohibit life-sustaining treatment, unless, when making the LPA, there was a specific direction applicable to this situation

If there is any disagreement between an attorney or the medical staff as to what the patient's best interests might be, then the case can be brought before the Court of Protection. You will need to discuss this with your hospital's solicitor.

In the absence of a Personal Welfare LPA, an attorney holding the Financial and Property LPA may be considered close to the patient, so that their view on a patient's past wishes should be considered in any discussions of best interests.

Deprivation of Liberty

The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DOLS) provides a legal framework to safeguard the interests of vulnerable individuals, ensuring that any restriction to their movement is kept to the minimum, and their independence maximized as much as is possible. The Supreme Court recently clarified that there is a deprivation of liberty in circumstances where a person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements. When a hospital identifies that a person who lacks capacity is being deprived of their liberty, they must apply to the local authority for an authorization of deprivation of liberty. Your hospital will have a local procedure to follow in these circumstances.

The Patient Should Be Fully Informed

The General Medical Council and the courts expect a patient to be given sufficient information to make a decision. Always remember that consent is a process, not a piece of paper, and should include:

• Ensuring that information is easy to understand
• Involving other members of the healthcare team if appropriate
• Ensuring you present the information in a balanced way
• Providing written material or other aids as necessary to assist with the discussion
• Taking into account the nature of the patient's condition, and presenting the relevant risks and benefits
• Checking understanding of risk, because it is possible the patient may interpret the information differently to you
• Discussion of possible serious adverse events of the proposed intervention, however unlikely

The consent process can be delegated to someone who may not be able to perform the intervention or procedure, or will not be doing so. However, this person must be suitably trained and have adequate knowledge about the risks and benefits, and understand their responsibilities to the patient.

Confidentiality

Doctors have a duty to keep information about their patients confidential. Care should be taken whenever communicating verbally or in writing that information is not inadvertently provided to others who are not entitled to know it. Information should not be shared without the consent of the patient. If consent is refused, or the patient lacks capacity, a number of points need to be considered to decide if disclosure is justified. This is normally whether it is in the patient's best interests or in the public interest. Public interest disclosure could be justified if relevant information could prevent harm to a third party or aid the detection, investigation or prosecution of a serious crime. Care should be employed when providing information to relatives to ensure that it is what the patient may have wished.

Confidentiality may be inadvertently breached when:

• Doctors talk about patients in areas where others can overhear, for example the hospital cafeteria
• Medical handover sheets are left in public places
• The data security policy of the Trust is not followed
• Doctors take patient-identifiable information out of the the work place, such as on memory sticks, to prepare a presentation at home