Copyright EMAP Publishing 2018 This article is not for distribution Clinical Practice Keywords Decision making/Mental Capacity Act/Best interests Discussion This article has been Consent double-blind peer reviewed In this article... l Different ways in which consent can be given and what makes it valid l Importance of the Mental Capacity Act 2005 in relation to obtaining patient consent l Circumstances when treatment can be given lawfully in the absence of consent Informed consent 2: assessing validity, capacity and necessity Key points Author Helen Taylor is visiting lecturer at the University of Birmingham and freelance Consent may be writer on health law. 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 evidence 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; Nursing Times [online] July 2018 / Vol 114 Issue 7 50 www.nursingtimes.net Copyright EMAP Publishing 2018 This article is not for distribution Clinical Practice Discussion 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.