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Mental Capacity Act practice guidance

Part 28

Consent and implied consent

Code of Practice chapter 6; Code of Practice chapter 16

Issues of consent are particularly relevant if someone is being assessed for, or offered, medical treatment.

All hospitals and other providers of health care will have a consent policy. Staff should always comply with the policy of their employing agency, which will take account of the MCA Principles. (Part 2: The Principles)

The concept of implied consent suggests that if someone puts out their arm when a healthcare professional comes to take a blood sample, their action implies that they consent to this procedure. MCA suggests that this should not be assumed.

The question is whether the person understands the medical procedure that is being proposed and can retain and weigh up relevant information. MCA requires that a full explanation of the procedure is given; that there is a conversation with the person, and that consent is meaningful. (Part 6: How to assess capacity)

The consent of the patient must be obtained before any assessment or treatment can take place. This is equally true whether it is proposed to make small interventions such as taking blood, or larger interventions such as surgery. Without valid consent the patient could claim that an assault has been made on their person. (Part 12: Legal protection when applying MCA)

For consent to be valid the patient must be aware of the decision they are making and for what purpose and they must not be under duress. They must be able to refuse if they wish, for any reason.

On some occasions staff may feel that the decision is unwise. This does not make it invalid and does not prove that the person doesn’t have capacity. Principle 3 states: ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision’. (Part 2: The Principles)

Two part capacity assessment

Some patients will not be able to give consent. There could be a number of reasons for this (severe dementia, brain injury, learning disability, intoxication) and it may be a permanent or a temporary condition.

If the person may recover capacity to make the decision about treatment, the decision should be delayed if possible. It may be that it is not possible to delay. It may also be that the treatment may be what is needed for the person to recover; this needs to be clearly recorded. (Part 10: How to record decisions)

If after speaking to a patient it seems probable that they are unable to consent, and the assessment or treatment is necessary, you must carry out the two part assessment of their capacity. This can be done using a consent form for patients unable to consent or a specific Mental Capacity Act assessment form. Each healthcare provider organisation will have a local version of the consent form available on the local electronic recording system or in paper form. Both forms assist clinicians through the process. (Part 6: How to assess capacity) (Part 10: How to record decisions)

The Department of Health has created guidance on drawing up consent forms, and how to use them.

The decision-maker will need to determine the patient’s ability to consent before starting a procedure. (Part 7: Being a decision-maker)

The outcome of the capacity test could be:

  • the person has capacity and is able to sign a consent form or give verbal consent – the person’s decision must be respected, even if it seems to be unwise
  • the person lacks capacity at this time to make this decision. The clinician will need to decide if it is in the best interest of the patient to be given the assessment or treatment. Best interests decisions must be made in accordance with the MCA Principles. (Part 8: Best interests decisions)

In the case of an emergency assessment and treatment can take place under Common Law. (Part 29: Emergencies)

Consent to share information

Before any health or social care can be given, the person receiving care will need to give permission for information to be shared with other professionals or providers. If the person lacks capacity to make this decision the agency, in consultation with any representatives, will need to make a best interests decision about sharing information.

Everybody is protected by the Data Protection Act 1998. This requires organisations to:

  • process personal information fairly and lawfully
  • keep only necessary information
  • use or share it only for stated purposes
  • collect only information that is relevant
  • keep information only for as long as necessary
  • update information as appropriate.

All NHS services and local authorities are protected by a Caldicott Guardian – someone appointed to ensure the organisation handles information correctly. This requires the organisation to justify why they use confidential information, using a minimum of information when necessary, on a need-to-know basis and requires all staff to understand their responsibilities and comply with the law. (Part 30: Confidentiality)