Consent and Capacity

Consent and capacity are fundamental legal and ethical concepts that appear repeatedly in SJT scenarios. This lesson provides a thorough examination of informed consent, the legal framework for assessing capacity, Gillick competence for patients under 16, the Mental Capacity Act 2005, and best interest decision-making.

---

Informed Consent: The Three Requirements

Valid informed consent requires three elements, all of which must be present simultaneously:

Requirement	Detail
1. Information	The patient must be given sufficient information about the proposed treatment, including risks, benefits, alternatives, and the consequences of doing nothing
2. Capacity	The patient must be able to understand, retain, and weigh the information, and communicate a decision
3. Voluntariness	The decision must be made freely, without coercion, undue influence, or pressure from healthcare professionals, family, or others

If any one of these three elements is absent, consent is not valid.

---

What Constitutes "Sufficient Information"?

The landmark case of Montgomery v Lanarkshire Health Board (2015) established the modern legal standard for informed consent in the UK:

A doctor must disclose any material risk — a risk that a reasonable person in the patient's position would consider significant, or one that the doctor knows or should know this particular patient would consider significant.

In Practice

What to disclose	Example
Common risks	Side effects that occur frequently
Serious risks	Rare but severe complications (e.g., death, permanent disability)
Alternatives	Other treatment options, including doing nothing
Individual risks	Risks that are particularly relevant to this patient (e.g., a professional musician being told about a risk of hand numbness)
Expected outcomes	What the patient can realistically expect from the treatment

SJT Application

Scenario: A patient is about to undergo a minor procedure. The registrar asks you (a medical student) to "get the consent form signed."

Action	Rating	Why
Explain that as a medical student you are not qualified to take consent for a procedure you cannot perform, and ask the registrar to do it	Very appropriate	Consent should be taken by someone qualified to perform the procedure and answer questions about it
Take the form to the patient and ask them to sign it	Very inappropriate	You cannot take meaningful consent for a procedure you do not perform
Explain the procedure to the patient based on what you know and get them to sign	Inappropriate, but not awful	Well-intentioned but you are not qualified to take this consent

---

Capacity: The Legal Framework

The Mental Capacity Act 2005 (England and Wales)

The Mental Capacity Act (MCA) provides the legal framework for assessing capacity and making decisions for people who lack it.

The Five Statutory Principles

Principle	Explanation	SJT implication
1. Presumption of capacity	Every adult is presumed to have capacity unless proven otherwise	Never assume someone lacks capacity without assessment
2. Right to support	All practicable steps must be taken to help the person make their own decision	Use interpreters, visual aids, simple language, choose the best time of day
3. Right to make unwise decisions	A person is not to be treated as lacking capacity merely because they make a decision that others consider unwise	Do not equate disagreement with incapacity
4. Best interest	Decisions made on behalf of a person who lacks capacity must be in their best interest	Follow the best interest checklist (see below)
5. Least restrictive option	Any action taken must be the least restrictive of the person's rights and freedoms	Choose interventions that preserve as much autonomy as possible

The Capacity Assessment: The Four-Part Test

A person has capacity for a specific decision if they can:

Step	Test	Example
1	Understand the relevant information	Can they understand what the treatment involves, its risks, and its benefits?
2	Retain the information long enough to make the decision	Can they hold the information in mind for the duration of the decision-making process? (Even brief retention counts)
3	Weigh the information	Can they consider the pros and cons, balancing different factors?
4	Communicate the decision	Can they express their decision by any means (speech, writing, gestures, eye movements)?

Critical Points for SJT

Point	Detail
Capacity is decision-specific	A patient may have capacity for simple decisions (what to eat) but not complex ones (whether to have surgery)
Capacity is time-specific	A patient may lack capacity at one point (when sedated) but regain it later
Capacity is presumed	The burden of proof is on those who claim the patient lacks capacity
Unwise ≠ incapable	A patient who makes a decision you consider foolish is not necessarily lacking capacity
Fluctuating capacity	If capacity fluctuates, try to time important decisions for periods of capacity

---

Gillick Competence: Patients Under 16

The Legal Background

In Gillick v West Norfolk (1986), the House of Lords established that children under 16 can consent to treatment if they have sufficient understanding and intelligence to fully understand what is proposed.

Assessing Gillick Competence