Consent to medical treatment

Answers some of the common questions about consent to medical treatment and explains the options available.

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Treatment without consent under the Mental Capacity Act 2005

What is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 (MCA) contains the law that applies to anyone who lacks the mental capacity needed to make some or all of their own decisions. In certain circumstances, the MCA allows a decision to be taken by one person on behalf of another. It also allows individuals to plan ahead for a time when they might lose the capacity to make particular decisions. A person’s capacity may be permanently affected (for example, if they have a form of dementia) or for a temporary period (perhaps because they are confused because of a short illness).

What does ‘lacking capacity’ mean?

The MCA says: “…a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

The phrase “in relation to a particular matter” highlights that the level of capacity needed by a person depends on the decision to be made. For example, a person probably needs less capacity to make a decision about everyday matters, such as what to eat, than to decide whether to accept medical treatment. Mental capacity must also be considered at a particular time – at “the material time”. This is very important for people who experience mental distress. People who hear distressing voices, for example, may feel able to make a certain decision when they are not hearing the voices but not when the voices are at their most distressing.

Is there a test for mental capacity?

The MCA states that a person is unable to make a decision if he or she is unable to do one or more of the following things:

  • understand the information relevant to the decision
  • retain the information for long enough to be able to make a decision
  • use or weigh up the information as part of the process of making the decision
  • communicate the decision by any possible method, such as talking, using sign language, squeezing someone’s hand and so on.

What if a person lacks the capacity to make a treatment decision?

If a person lacks capacity to make a decision about medical treatment, the person is unable to give valid consent.

The MCA allows people to plan for what should happen if they ever become unable to make certain decisions in the future. In particular, it allows people to make a Lasting Power of Attorney (LPA) or anadvance decision (see ‘Part 4: Making plans’). If a person has not made plans and becomes unable to make a particular decision, the MCA says that someone else may make that decision. This could be a friend, a relative, an informal carer, a professional carer, a doctor, a social worker or a nurse, for example. The MCA also protects a person from legal liability if he or she takes actions and decisions in connection with the care or treatment of a person who lacks the mental capacity to deal with their own care or treatment.

The health professional in charge of the treatment makes the decisions about whether the individual can give consent. That professional should discuss any issues with others involved in the patient's care and with the patient’s family and close friends. If it is decided that the patient lacks the capacity needed to give consent, the treatment can be given if it is deemed to be in the person’s best interests. The MCA does not contain a definition of the term “best interests” but does set out a checklist of issues that should be considered by anyone taking an action or decision on behalf of someone else. Note: certain major treatments cannot be given without approval from the Court of Protection.

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