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Mental Capacity and consent

Elderly gentleman and young man in red hat smiling and enjoying time together. Photo by Nathan Anderson on Unsplash.

When I first started working in healthcare there was very little said about capacity yet there was a lot of emphasis said about consent, especially that of informed consent. Consent to treatment, consent to an intervention, consent to support with personal care, consent to speak to a family member, consent to take photos, consent to store information or share with the GP. The list is quite endless and is a staple of not just the health care system, but our society as a whole that has grown in importance over the years.

The purpose of consent is to ensure a person’s rights are respected through seeking to confirm understanding prior to an agreement, upholding a person’s right to choose, reducing risk of distress, reducing risk of confusion or unknown impacts including that of subclauses or in adverse effects occur, as well as aiming to prevent breaches of information sharing or litigation.

As an Occupational Therapist, gaining and recording consent was drummed into me as good practice for any interaction when working with an individual, ensuring this was discussed, asked and received for each session, which was further well documented within the opening paragraph of my written records. I would also ensure that the person knew when we could or would work beyond consent – if they were in crisis and at risk of harm themselves or others, setting clear information and expectations for a therapeutic trust. Without this essential factor established prior to any support, treatment or interactions, we would as professionals be in breach of our codes of conduct, which provide health professionals with an ethical underpinning and clear direction for best practice to support person centred care.

But do we know what consent is? Can you have consent without capacity?

If we consider the root of what consent is, it can be defined as a person’s informed agreement for a given activity, task, intervention, contract, transaction or interaction. According to the medical dictionary, consent is far more than this; specifying that it is a voluntary provision of permission, therefore is not under coercion or duress, and that the individual must have ‘sufficient mental capacity and be in possession of all essential information in order to give valid consent’.  This draws our attention to three core pieces of information:

  1. Influence
  2. Provision of relevant information
  3. Sufficient Mental Capacity for the specific decision

Therefore if we are acquiring consent in our every working day, in any environment, we need to be aware of any possible influences on the individual affecting their decision making, including that our own impact. To support reflection on levels and forms of influence there are a wide range of resources available to guide consideration of this area and would prompt awareness of religion, political perspective, class, sexual orientation and other elements. To determine, this can be established through direct questioning, limiting the number of people present for gaining consent unless they are essential to support and through professional observation.

To confirm an individual has understood all the information surrounding the specific decision, this can be supported through ensuring it should be in an accessible format and language for that individual. I would observe that for a person to just say ‘yes’ or ‘no’ is not typically enough to confirm, rather they need to be able to reiterate and put in their own words what they are agreeing to. If they are unable to expand their responses due to their health conditions, careful grading of the interaction, use of sequential well formed closed questions and documentation needs to proceed in order to support that individual to communicate their views. 

While the third point addresses the vital need for sufficient Mental Capacity. To determine mental capacity, it must address a specific decision, you can not state or presume a person does not have capacity. Once the decision has been identified, you assess whether the individual can understand the relevant information about the decision, retain this for long enough to weigh up their decision, considering the risks and benefits then communicate their decision. If unable to do this, do they have any cognitive impairment, short or long term, that is affecting this decision making process and how/why? If they do, will they regain capacity? In which case, can the decision be delayed until this point. Failing this, a Best Interest decision, consulting all relevant parties and using the guidance to determine, must be completed.

In terms of the use of ‘sufficient’ this refers to the threshold for capacity. This threshold of capacity is often lower than people presume, it considers what would the average ten people on a London bus understand surrounding that decision – which is also known as in the balance of probabilities.

So as you can see, consent and capacity are intrinsically linked. It is therefore quite surprising that we do not more commonly speak of Mental Capacity in the same way we do of consent. Especially since the Mental Capacity Act (2005) came into force in 2007, yet we continue to keep consent and capacity so separated. However, I believe there is great potential to start making more use of Mental Capacity guidance when it comes to consent as this will help professionals attain a better level of consent and will also help protect and safeguard vulnerable people and promote their voice.

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