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Clinical Practice Keywords Decision making/Mental Capacity Act/Best interests Discussion This article has been double-blind peer reviewed In this article... ● Different ways in which consent can be given and what makes it valid ● Importance of the Mental Capacity Act 2005 in relation to obtaining patient consent ● Circumstances when treatment can be given lawfully in the absence of consent

Informed consent 2: assessing validity, capacity and

Key points Author Helen Taylor is visiting lecturer at the University of Birmingham and freelance Consent may be writer on health . explicit or implied and patients may Abstract Nurses need to obtain their patient’s consent before giving any treatment. communicate their This is the general rule, but the issue of consent is much more complex than that. consent verbally, How is consent given? How can you prove that it has been given? How do you decide non-verbally or whether or not to administer treatment to someone who is unable to give consent? in writing The first article in this two-part series explored the legal principles behind informed consent and discussed why valid consent is not only required by law, but also The validity of fundamental to the provision of good-quality, person-centred care. This second consent depends on article goes on to explore what makes consent valid, how it can be obtained, and in the circumstances in what circumstances treatment may proceed lawfully without the patient’s consent – which it is given, not which has been clarified by the Mental Capacity Act 2005. on its form Citation Taylor H (2018) Informed consent 2: assessing validity, capacity and It is good practice necessity. Nursing Times [online]; 114: 7, 50-52. to record that the patient has consented s explained in the first article in other intervention that is planned. Patients to treatment this two-part series, nurses may signal their consent in a variety of need to obtain their patient’s ways: verbally or non-verbally, orally or in The Mental Capacity Aconsent before giving any care writing, in an implied or an explicit way. Act 2005 provides a or administering any treatment. Valid and An example of implicit consent would be legal framework for informed patient consent is not only a pro- when a patient voluntarily offers their decision making fessional obligation but also an ethical and wrist to have their pulse checked. The when a patient legal one, and its principles and parame- validity of consent does not depend on the is unable to make ters have been redefined by recent case law form in which it is given, but on the cir- a decision (Taylor, 2018). cumstances in which it is given. Having established the need for patient The General Medical Council (GMC) It may be lawful to consent, it is now important to consider (2008) says that “in the case of minor or treat a patient how patients may give consent, how routine investigations or treatments, if without their nurses may provide evidence of consent, you are satisfied that the patient under- consent – for and how to manage situations in which a stands what you propose to do and why, it example, in an patient is not able to give consent. This is usually enough to have oral or implied emergency situation second article in the series discusses what consent”. When interventions are more or if the patient makes consent valid, how to assess a complex or carry with them a greater risk, lacks decision- patient’s ability to give consent, and in written consent will be necessary to pro- making capacity which situations treatment may be given vide clarity on what has been discussed lawfully in the absence of consent. and for what exactly consent has been granted. The GMC underlines that written Validity of consent consent from a patient is needed if: The way in which consent may be given l The investigation or treatment is will depend on the type of treatment or complex or involves significant risks;

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Inability to make decisions According to the 2005 MCA, “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”. Box 2 sets out how it defines inability to make decisions. The assessment of mental capacity is decision specific. Simply because a person lacks capacity to make one decision (for example, whether to take antibiotic treat- ment for a chest infection), it should not be assumed that they lack capacity to make other decisions (for example, whether to take a bath). Also, capacity may fluctuate, so the assessment of mental capacity is time limited. Even if a person lacks capacity to make a certain decision at a particular time, it does not follow that they will never again have capacity to make that decision in the future. In some circumstances, written consent must be obtained before treatment can commence Who should assess mental l There may be significant consequences “Nurses must be able capacity? for the patient’s employment, or social Who is responsible for assessing a patient’s or personal life; to justify their actions” mental capacity depends on the type of l Providing clinical care is not the decision being made (Taylor, 2014). The primary purpose of the investigation consent. The court will consider the issue general rule is that it will be whoever will or treatment; as a question of fact – was valid consent be making the decision on the patient’s l The treatment is part of a research given? An example is Connelly v Croyden behalf. For routine personal and nursing programme or is an innovative Health Services NHS Trust [2015] EWHC interventions, this would usually be the treatment designed specifically for 1339 (Q.B.) (Bit.ly/ConnellyCase). [the patient’s] benefit. Box 1. Mental Capacity Act: Furthermore, the Human Fertilisation and A game changer – the 2005 underpinning principles Embryology Act 1990 (Bit.ly/EmbryologyAct) Mental Capacity Act stipulates the legal requirement that Before the 2005 Mental Capacity Act (MCA) l A person must be assumed to have written consent is to be obtained for certain (Bit.ly/MCA2005) came into force in 2007, capacity unless it is established that treatments, such as fertility treatments. the law was not entirely clear on how to he lacks capacity lawfully administer treatment to a patient l A person is not to be treated as Evidence of consent who was not able to provide consent. There unable to make a decision unless all Written consent is not, on its own, suffi- was no scope for consent to be given on a practicable steps to help him to do so cient evidence that the consent was patient’s behalf. There were no criteria or have been taken without success informed and given freely. As highlighted procedures for taking a patient’s wishes l A person is not to be treated as by the Department of Health (DH) and preferences into account. In these cir- unable to make a decision merely (2009), “written consent merely serves as cumstances, care often proceeded on an because he makes an unwise evidence of consent: if the elements of uncertain legal basis. decision voluntariness, appropriate information The MCA has given us a statutory frame- l An act done, or decision made, under and capacity have not been satisfied, a work for decision making when a person’s this act for or on behalf of a person signature on a form will not make the mental capacity to make a decision – who lacks capacity must be done, or consent valid”. including consenting to treatment – is ques- made, in his best interests Should a situation arise in which, for tioned. Box 1 lists the five underpinning l Before the act is done, or the decision example, a patient alleges that treatment principles of the MCA. As well as a basis for is made, regard must be had to has been given without their consent, it patients to make valid advance decisions to whether the purpose for which it is would be the patient’s responsibility as the refuse treatment (ADRTs), the MCA pro- needed can be as effectively claimant (Abrath v The North Eastern vides a framework for making decisions on achieved in a way that is less Railway Company [1883] 11 Q.B.D 440) – or, behalf of a patient who has been deemed to restrictive of the person’s rights and in a criminal case, the prosecution’s lack decision-making capacity, including freedom of action responsibility (R v Donovan [1934] 2 KB lasting power of attorney and court- Source: Mental Capacity Act 2005

SPL 498) – to prove that they had not given appointed deputies.

Nursing Times [online] July 2018 / Vol 114 Issue 7 51 www.nursingtimes.net Copyright EMAP Publishing 2018 This article is not for distribution Clinical Practice For more articles on mental health, go to Discussion nursingtimes.net/mentalhealth nurse planning to deliver that care (Ruck Box 2. Mental Capacity Act: EWHC 3147 (QB) (Bit.ly/GallardoCase) and Keene et al, 2014; Taylor, 2014; Department inability to make decisions Montgomery v Lanarkshire Health Board for Constitutional Affairs, 2007). However, [2015] UKSC 11 (Bit.ly/MontgomeryCase). when it comes to more complex decisions l A person is unable to make a The first article in this series estab- – notably in end-of-life care – it may be decision for himself if he is unable: lished that nurses must obtain valid con- necessary to apply to the Court of Protec- l To understand the information sent from the patient before proceeding tion, first to decide whether or not the relevant to the decision with treatment or any other intervention. person has capacity and, if they do not, l To retain that information This second article further explored the whether the care proposed by the clinical l To use or weigh that information issue by considering what makes consent team is in the person’s best interests (Ruck as part of the process of making valid and in which circumstances treat- Keene et al, 2014). the decision or ment may proceed lawfully without it. l To communicate his decision However, health professionals should be Giving treatment without consent (whether by talking, using sign aware that, in most cases, consent will be The MCA works on the presumption that a language or any other means) needed and responsibility for getting it person has mental capacity to make l A person is not to be regarded will rest with whoever plans to deliver the decisions regarding their care, but it also as unable to understand the treatment – that individual will be liable in sets out how to manage situations in information relevant to a decision law if they give treatment without having which a person has been deemed to lack if he is able to understand an obtained consent. NT that capacity. It introduces a number of explanation of it given to him in a ways in which treatment can be authorised way that is appropriate to his ● The first article in this series appeared in in those patients who lack capacity. It circumstances (using simple the June 2018 issue and is available online also establishes a statutory obligation to language, visual aids or any at Bit.ly/NTConsent1 take into account the person’s wishes and other means) preferences when making decisions on l The fact that a person is able to References their behalf. retain the information relevant to British Medical Association (2016) Consent Toolkit: Emergency Treatment. Bit.ly/BMAConsentToolkit The circumstances in which treatment a decision for a short period only Department for Constitutional Affairs (2007) – as long as “it is in the patient’s best inter- does not prevent him from being Mental Capacity Act 2005: Code of Practice. ests and is immediately necessary to save regarded as able to make the Bit.ly/MCACode life or avoid significant deterioration in decision Department of Health (2009) Reference the patient’s health” (British Medical l The information relevant to a Guide to Consent for Examination or Treatment. Association [BMA], 2016) – may lawfully go decision includes information about Bit.ly/DHConsentGuide General Medical Council (2008) Consent: ahead without the patient’s consent are as the reasonably foreseeable Patients and Doctors Making Decisions Together. follows: consequences of: Bit.ly/GMCConsent l If the patient lacks the mental capacity l Deciding one way or another or Ruck Keene A et al (2014) Mental Capacity Law to consent to treatment and is not able l Failing to make the decision Guidance Note: A Brief Guide to Carrying Out Capacity Assessments. to engage with the consent process; Source: Mental Capacity Act 2005 l If the patient has given no authority to Bit.ly/RuckKeeneMentalCapacity consent under a lasting power of Taylor H (2018) Informed consent 1: legal basis and implications for practice. Nursing Times; 114: l  attorney; The patient has not made a lasting 6, 25-28. l If the patient has not previously given power of attorney giving authority to Taylor H (2014) Helping people with learning any indication that they would refuse someone (an attorney) to make disabilities exercise their right to autonomy. consent for the treatment (for example, personal welfare decisions on their Learning Disability Practice; 17, 7, 32-37. verbally or in a valid ADRT). behalf; l The patient has not previously given Emergency situations any indication that they would refuse Nursing Times Except in the circumstances outlined that treatment if they were able to Journal Club above, the patient’s consent is required (either verbally or in a valid ADRT). online before any treatment can go ahead, even in Once these checks have been made, emergency situations. However, in such medical treatment may go ahead lawfully, To use this article for a journal club situations, it may not always be possible to provided that only “medical treatment discussion with colleagues, go to get their written consent – for example, in that is in the patient’s best interests and is nursingtimes.net/NTJCConsent and a life-threatening emergency or if imme- immediately necessary to save life or avoid download the discussion handout. diate treatment is necessary to relieve significant deterioration in the patient’s Your journal club activity counts as acute pain. In these circumstances, oral health” is administered (BMA, 2016). participatory CPD hours or can be consent may be relied upon. used as the basis for reflective In some emergency situations there Conclusion accounts in your revalidation activities. may not be time to obtain the patient’s The matter of consent can be complex. The consent or otherwise determine the GMC’s (2008) guidance on consent in clin- For more Nursing Times Journal Club patient’s wishes, or the patient may lack ical practice is a useful tool and now has a articles and tips on how to set up and capacity to consent. In these circum- basis in law, as it has been endorsed by run your own group, go to: stances reasonable steps must be taken to recent case law such as Gallardo v Imperial nursingtimes.net/NTJournalClub check that: College Healthcare NHS Trust [2017]

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