Establishing legal capacity and competence
The capacity to consent to treatment is usually established by the individuals' status as an adult in society. In Scotland the legal age of capacity is 16 and over this age individuals can provide consent to treatment (Age of Legal Capacity (Scotland) Act 1991). In the rest of the UK, the legal age of capacity is 18 but those over the age of 16 can provide consent to treatment (Family Law Reform Act 1969; Age of Majority Act (Northern Ireland) 1969). Gillick v West Norfolk & Wisbeck Area Health Authority established that children under the age of 16 can give consent to treatment if they are thought to have the mental capacity to understand the treatment offered. Competence must be judged on an ongoing basis. In England, Wales and Northern Ireland refusal of treatment may, however, be overturned in certain circumstances for those aged 16-17 (in Scotland this situation has not yet been tested). For further information on consent issues for children and young people see: British Medical Association and Medical Protection Society websites
Some adults may also not have the capacity to consent to treatment either temporarily or on a more enduring basis. The Adults with Incapacity (Scotland) Act 2000 and Mental Capacity Act 2005 (England and Wales) set out principles that must be adopted when assisting an individual with limited or no ability to manage their own affairs and in particular the inability to:
- Make decisions
- Communicate decisions
- Understand decisions
- Retain the memory of decisions
A Code of Practice is available for Part 5 of the Adults with Incapacity (Scotland) Act relating to medical treatment and research.
The 5 principles of the Act should be considered in making decisions on whether to proceed with any intervention:
- The intervention should be benefit the individual
- The intervention should be the minimum possible
- The wishes and feelings of the individual should be considered and attempts made to communicate with the individual
- The views of nearest relatives, primary carer or any guardian or welfare attorney should be considered
- The individual should be encouraged to exercise whatever skills they have in decision making
In an emergency the decision to provide treatment out of necessity, to save the patients' life or prevent further deterioration can be taken by the doctor or healthcare professional.
With the exception of emergency situations, for adults lacking capacity to make decisions, a certificate of incapacity is required before care or treatment can be provided. The certificate can be issued by a registered medical practitioner, dental practitioner, ophthalmic optician or registered nurse who has undergone training on the assessment of incapacity. The certificate signed by any practitioner other than a registered medical practitioner is only valid in their area of practice. Care and treatment should be provided by the person signing the certificate or can delegated to others acting under the signatorys' agreement (Scottish Government, 2008)
Once the certificate is provided the individuals legally appointed guardian or proxy can provide consent:
- An identified guardian or advocate can be legally appointed to act on behalf of the individual with limited capacity in relation to their finances, health and welfare. This person can be nominated and legally appointed when an individual is well and capable of making their own decisions to ensure plans are in place in the event of future incapacity
- a person may be appointed by the courts if the individual does not have capacity to identify a person of their choice. See Office of the Public Guardian Scotland website for further information.
If there is no guardian the doctor can rely on the general authority to treat and can act in the best interests of the patient carrying out treatments, including if deemed necessary invasive treatments until the patient is well enough to resume control of their own affairs and provide consent to treatment. See British Medical Association guidance on medical treatment for adults with incapacity.
The Mental Health (Care and Treatment) (Scotland) Act 2003 came into effect in April 2005 and provides information in relation to:
- when an can individual can be taken into hospital against their will
- when they can be given treatment against their will
- the rights of patients with an order of the act applied to them
- safeguards to make sure their rights are protected.
Advanced practitioners need to be fully aware of the legal implications associated with capacity and act to safeguard individual rights. See guidance on Nursing and Midwifery Council website.
Further information on consent and capacity can be found at the British Medical Association Consent Toolkit.