Section 6Complaints
A question of mental capacity
A 79 year-old woman was admitted to her local Capacity may vary with the complexity of the decision
hospital following a fall at home. X-rays confirmed that is being made but may also fluctuate with time. The
that she had sustained a fracture of her right hip doctor must therefore consider whether it is possible to
that required open reduction. Initially she agreed defer the decision until such time as the person regains
to undergo surgery and signed a consent form on capacity.
the day of admission. However, 48 hours later, on
the morning of the surgery, she said she no longer
In this case, the proposed surgical procedure was elective.
wished to have the operation.
Therefore, the MDU advised the consultant to defer the
surgery until a formal assessment of his patient’s capacity
The orthopaedic consultant contacted the MDU for could be made, which might involve either a consultant
advice. He was concerned that his patient was confused psychiatrist or a psycho-geriatrician. The MDU adviser
and might not understand the implications of her also indicated that if the patient was found to have
decision. He thought his patient lacked the capacity to capacity then the consultant must ensure that she was
make the decision to refuse the surgery and wondered provided with all the relevant information necessary to
whether it would be appropriate to perform the surgical make her decision, including the risks and benefits of
reduction in these circumstances. having or not having the surgery. If the patient had
capacity, the consultant was advised that her decision
had to be respected even if he believed it to be unwise.
MDU advice
If the patient was found to lack capacity, the consultant
was advised he had to act in her best interests, taking
In the course of clinical practice most doctors are likely to
into account all the relevant medical information, as well
treat patients whose capacity is difficult to determine,
as considering her social circumstances, religious and
either as a result of an illness, disability or injury.
moral beliefs, and the opinions of her family and friends.
Treatment of patients over the age of 18 who lack
capacity is now governed largely by the Mental Capacity
The consultant was also advised to consider the patient’s
Act (2005). The Act is supplemented by an extensive Code
past and present wishes and feelings (in particular any
of Practice, which sets out guidance for professionals
relevant written statement made when she had capacity),
working with these patients.
the beliefs and values that would be likely to influence
the patient’s decision if she had capacity, and any other
There are five statutory principles, which underpin the
facts that she would be likely to consider if she were able
Act. These are:
to do so.
• A person is presumed to have capacity unless proven
He was also advised to check whether the patient had
otherwise.
appointed a personal welfare attorney and if she had, he
• All practical steps must be taken to maximise a
was advised to consult with them.
patient’s decision-making capacity.
In this case there was a family member involved, but in
• A person has the right to make any decision, even if
the event that there are no family or friends to consult
this appears to be unwise.
regarding serious medical treatment then the doctor
would need to check whether an Independent Mental
• All decisions made on behalf of a person without
Capacity Advocate had been appointed as an advocate
capacity must only be made in the person’s best
for the patient and consult with them accordingly.
interests.
The consultant rang back later to explain that the
• Each decision must be the least restrictive option for
woman was found to have capacity and that he had
the patient.
discussed the surgery with her again the following day
The Code goes on to outline a two stage diagnostic test
while her daughter was present, at the patient’s request.
for assessing capacity. Doctors must determine if the
It transpired that the patient’s friend had developed a
patient suffers from an impairment of body or mind. If
serious infection following similar surgery some years
so, they must also determine whether this impairment is
previously and the patient was worried about
permanent or temporary and whether this impairment
post-operative complications. The surgeon explained that
could render a person incapable of making the decision.
infection was a risk of all surgery and what measures
would be taken to reduce the risk as much as possible.
A person lacks capacity if they are unable to: In the end the woman decided to go ahead with the
• Understand the information relevant to the decision.
surgery and made a good recovery.

• Retain that information.
• Use or weigh up that information as part of the
“If the patient had capacity, the

process of making the decision.
consultant was advised that her
• Communicate their decision by whatever means
necessary.
decision had to be respected even
if he believed it to be unwise.”
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