Consent and mental incapacity


Any adult is assumed to have the competence to consent to or refuse medical interventions unless it can be proven otherwise. Assessing mental capacity is not straightforward and you should consult guidance provided by a relevant professional body (see Assessment of Mental Capacity: Guidance for Doctors and Lawyers, published by the BMA/Law Society, www.bma. org.uk) or contact MDDUS. The law on obtaining consent in the mentally incapacitated varies between countries.


Scotland In Scotland, The Adults with Incapacity (Scotland) Act makes provision for legally valid proxies to consent for incapable adults. These may be in the form of welfare attorneys, welfare guardians or intervention orders. In addition the Act provides for a legally valid authority to treat on completion of a prescribed form by a registered medical or dental practitioner, nurse or optician who has undergone training. In circumstances where no proxy exists, this authority to treat has legal standing. Decisions must be made on the basis of benefi t to the patient, taking account of the views of others with an interest in his or her welfare, and using the least restrictive option. The patient’s present or past wishes as far as they can be ascertained must also be considered. Further details can be found at http://www.opsi.gov.uk


England, Wales and Northern Ireland In England and Wales, the Mental Capacity Act provides a legal framework for treatment of incapable adults. (In Northern Ireland, decision making is governed by common law). Proxy decision makers are again legally recognised in the form of lasting power of attorney and court appointed deputies, and a new Court of Protection has jurisdiction relating to the whole Act. Doctors may make treatment decisions for incapable adults based on best interests and least restrictive option, taking account of the views of the patient’s parents, relatives and carers. Independent mental capacity advocates may be appointed to support an incapable adult who has no family or friends. Further details can be found at http://www.opsi.gov.uk


Advance directives Patients who have lost capacity to consent or refuse treatment may have previously indicated their wishes in an advanced directive or ‘living will’ made while still competent. Such a directive may be verbal or written, and in order to be valid it must have been made on a voluntary basis and not under duress. It must also be clearly applicable to the patient’s present circumstances and there must be no grounds to suspect the patient might have changed his or her mind. If in regard to refusing life-prolonging treatment, the directive must be written, signed and witnessed. Advance refusals of treatment are recognised as legally binding under the terms of the Mental Capacity Act in England and Wales. There is some indication that they may be legally binding in Scotland. It is best to seek legal advice if any doubt exists about the validity or legal status of an advance directive.


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