As defined by the Law Society Informed Consent is: ‘an individual is always presumed to be competent, or to have mental capacity to enter into a particular transaction, until the contrary is proved.’ (Law Society – BMA 1995). No one can consent to or refuse treatment on behalf of another adult who lacks capacity to consent. Parents cannot consent on behalf of their adult children, no matter what level their learning disability is.
Waiving of consent
Consent can only be waived under certain conditions:
- To preserve life, health or well being of the person e.g. in A&E for emergency situations
- If the patient is being held under the Mental Health Act
- It is agreed during a formal ‘Best Interests’ meeting which is a multidisciplinary meeting including all professionals/ carers/family/patient involved in the care of the patient. At this meeting the professionals will decide whether a particular intervention was in accordance with best practice.
Any intervention carries out without the individual’s consent outside the above definitions, constitutes a civil or criminal assault, even if intended to benefit the patient.
Capacity to consent
The ability to give informed consent must involve an understandable explanation of:
- What will happen and why it is necessary in very simple terms
- The benefits and risks of the treatment and what alternatives are available
- What will happen if the patient does not consent
- Being able to retain what you have discussed with them and able to make a decision
Patients must not coerced into making decisions because the assessor believes the patient should have treatment.
Capacity can be temporary or permanent and in some circumstances it may fluctuate.
- Temporary factors such as psychosis, shock, depression, taking illegal drugs or alcohol and com can affect capacity
- Permanent factors such as cognitive impairment through vascular dementia, Parkinson’s disease and brain injury
Patients can withdraw consent at any time.
How to assess capacity
In order to assess capacity it is essential to:
- Elicit what skills or knowledge the patient may require to exercise capacity
- Find out what support and information the patient requires to achieve capacity
- Involve someone who knows the patient well and their level of communication
This must be patient centred and reviewed on a daily basis as part of their care plan.
Some people will never be able to make one or any decisions and judgement must not be made until all practicable steps have been taken to help the patient.
In law an adult unable to make a health decision can receive treatment that is common practice and used by the appropriately trained medical practitioner and that it is in the best interests of the patient.
The final responsibility for making sure the treatment plan for the patient lies with the health professional carrying out the procedure e.g. doctor, nurse, physiotherapist etc.
However, it is good practice to consult with people close to the patient to gain agreement unless:
- There is a good reason to believe the person would not wish those people to be consulted
- The urgency of the situation
It is important to remember that best interests are not just about best ‘medical’ interests. It also includes a patient’s wishes, beliefs, general being, personal relationships with others, spiritual and religious needs.
Where controversial circumstances are involved decisions around best interests should be made via the court.
Easy Health Website: http://www.easyhealth.org.uk/
- Going into hospital with a learning disability: www.nhs.uk/Livewell/Childrenwithalearningdisability/Pages/Going-into-hospital-with-learning-disability.aspx
- People with learning disabilities: making reasonable adjustments: www.gov.uk/government/publications/reasonable-adjustments-for-people-with-learning-disabilities
- Mencap: www.mencap.org.uk
- North Kent Independent Advocacy Scheme: Tel: 0788 6104109 or Email: email@example.com
Deprivation of Liberty Safeguards: https://www.osab.co.uk/wp-content/uploads/mental-capacity-act-2005-guide-for-family.pdf