While it has always been well established that an adult who lacks capacity cannot give valid consent to treatment, the Mental Capacity Act (MCA) places a renewed emphasis on the autonomy of the patient and imposes a clear requirement to involve patients and those close to them in the decision-making process in relation both to medical treatment and to the assessment of capacity (where this is in doubt). Clinicians must undertake reasonable steps to establish whether a patient has capacity to make a specific decision. If legal proceedings arise, the courts will assess assiduously whether practical steps have in fact been taken in a particular case to enhance the patient’s capacity*. If they have not, this will have serious ramifications for clinicians and hospital trusts alike. It is therefore important that protocols are put in place in hospitals to guide healthcare workers through steps which can be taken with more challenging patients who may traditionally have been treated in a paternalistic fashion. Trusts would be well advised to seek input from organisations such as Mencap, the Mental Health Foundation and MIND on how better to communicate with such patients. The goal should be to ensure that, where capacity to take a particular decision is present, it is genuinely respected regardless of the preconceptions that may be held about certain ‘types’ of patient.
*MCA, s 1 (3).
This article is adapted from Medical Treatment: Decisions and the Law, Third Edition written by members of Serjeants' Inn Chambers, and edited by Christopher Johnston QC. This title is also available as part of a subscription on Bloomsbury Law Online.