Skill List > Consent, Capacity, and Competency Issues (Mental Health)
Clinical Alert
It is clearly set out within the Mental Capacity Act (2005 ) that ‘a person must be assumed to have capacity unless it is established that he/she lacks capacity’. This is no different for patients detained under the Mental Health Act (Department of Health 2007) who must be afforded the same rights. Any removal of decision-making powers needs to be documented, with all necessary legal paperwork in place and clearly included within their records. Consent is required prior to procedures (e.g., electroconvulsive therapy) and the necessary consent forms must be completed and attached to their records. Records will need to show the patient’s nearest relative and next of kin in all cases. If their ability to give consent is in question, the Mental Capacity Act is used to establish whether or not they have the capacity to consent and make decisions about their healthcare and treatment. The Legal Definition of Mental Capacity is:

‘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.’ (Mental health Capacity Act 2005 Section 2(1).

Elsevier Clinical Skills covers the principles of this procedure. You must follow local policies and procedures regarding technique, equipment used and documentation.
Authors:
Based on Mosby Nursing Skills
Adapted by: Neil Murphy BSc(Hons) MSc RMN; Naomi Sharples BSc MBA PGCE ProfDoc RMNH RMN
Updated by: Catherine Johnson RGN RMN
Last updated: August 2017

Learning Objective
After reading the skill overview, following up some of the references/web sites and completing the self-test quiz you should be ready to be assessed in practice in the skill of consent, capacity, and competency issues with patients with mental health issues.

Introduction

Central to all decisions in relation to consent and capacity is that they should involve the patient. Such decisions can be wide, varied, and related to:

  • Treatment or care proposed and route of administration of such treatment or care.
  • Alternatives to any package of treatment or care.
  • The rationale for the proposed treatment that would address the patient’s intellectual ability and level of comprehension.
  • An explanation of the benefits and risks associated with any treatment.
  • A right to choose or refuse the treatment or care on offer.
  • Personal input where possible to any decisions made in relation to their own health care and treatment (including risk assessments and care plans).

The guiding principles of the Mental Capacity Act (Department of Health 2005) are as follows:

  • A person must be assumed to have capacity, unless it is clearly established that they lack capacity. 
  • A person must not be assumed not to have capacity until all practicable steps have been taken to help them make a decision without success.
  • People have the right to make decisions that appear to others to be unwise and they should not be treated as unable to make a decision in these circumstances if they have capacity. 
  • Any decision made or act carried out under the Act for or on behalf of a person who lacks capacity must be done or made in their best interests. 
  • Decisions made in a person’s best interests must also be done in the least restrictive way of the person’s rights and acts of freedom. 

The Mental Capacity Act (Department of Health 2005 Section 3(1)) explicitly states that all adults are presumed to have the capacity to consent or refuse treatment, unless they are unable to: understand the information relevant to the decision, retain the information for the time required to make the decision, use the information to help them weigh up their decision or communicate their decision – either verbally, in writing, using sign language or any other means. 

As part of the nursing process, nurses develop  therapeutic relationships with their patients through engaging in everyday events such as talking/engaging in conversation, escorting, and providing the patient with personal care, where decision making may be discussed and assessed. This is done in a variety of ways that will include establishing the patient’s ability to complete actions and to understand the consequences and risks attached to such actions. The role of the nurse is therefore implicit in any decisions to ascertain if a person does or does not have the capacity to make decisions for themselves.

Consent to accept treatment can be made by patients in a variety of ways: verbally, in writing, or by implying that they agree with the actions. Refusal can be made in the same forms. Care is needed with the latter as initial agreement may be achieved but then the patient could change their mind, which they have the right to do and withdraw their consent.  The NMC Code (NMC 2018) standard on Prioritising People states that nurses should act in the best interests of people at all times, which should also be balanced with the requirement to respect to respect a person’s right to accept of refuse treatment, even if that choice seems to be an unwise decision.

At times the decisions a patient makes or proposes to make may raise concerns about their understanding of the consequences of the decision. This may well raise the consideration of whether the patient has the capacity to make such decisions in their present mental state. Nurses are inherently placed to be able to both identify and instigate actions to establish the veracity of such evidence.

When considering the ability of patients to make decisions, this ability should not be questioned simply on the grounds of their age. Unfortunately, it is common that older people and the very young are regarded as having questionable capacity; but the same equitably assessed criteria need to be used to establish capacity for these patients as they are for anyone else. To make assumptions about the level of capacity without thorough assessment is both naive and potentially places the nurse in danger of breaching human rights.

Nurses are working in increasingly diverse settings and as such are likely to encounter increasingly complex situations where capacity and consent has to be assessed, including situations where people have Lasting Powers of Attorney and Advanced Directives in place. For example, a person over 18 years of age may make an advanced decision, at a time when they have capacity, to refuse a specified treatment should they be in a situation where they require it, for example a Do Not Attempt Resuscitation document in the event of a person requiring cardiopulmonary resuscitation in the future.  These advance decisions are legally binding (but in specific critical situations they may be challenged). Nurses must assume that they are a clear directive of the patient’s wishes and should be followed where possible. At times the nurse may be placed in an advocate role in trying to adhere to the patient’s wishes from such advance decision guidance, while others may be presenting an alternative choice. In Learning Disability services nurses will often care for individuals where they are supported by an Appropriate Adult or have a Guardianship. However, in these cases there are guidelines in place to support the nurses and additional training courses are available (Mental Capacity Act 2005).

Cultural considerations


  • An exploration must be made to establish if the patient has any cultural, religious, or spiritual beliefs that are likely to influence any care or treatment that they might receive.
  • If there are cultural, religious, or spiritual beliefs that may impact, then an understanding of this influence must be gathered, e.g. a Jehovah's Witness may make an Advanced Decsion to decline blood transfusions.
  • All interactions must abide by the patient’s and family’s decision making practice and customs.
  • All care and treatment should be planned to coordinate with the patient’s cultural, religious, and spiritual beliefs in care.
  • An understanding of gender issues related to care and treatment must be identified.
  • All cultural, religious, or spiritual sensitivities must be identified and this must be clearly planned for and recorded with the patient or a person deemed under law to be able to make such decisions for the patient.

Adolescents and capacity to consent

This area is complicated, but the Children Act 2004 provides some guidance:

‘There are three key points in relation to age of children that need to be emphasized:

  • At 16 a young person can be treated as an adult and can be presumed to have capacity to decide
  • Under the age of 16 children may have capacity to decide, depending on their ability to understand what is involved
  • Where a competent child refuses treatment, a person with parental responsibility or the court may authorize investigation or treatment which is in the child’s best interests.’

Maturity is a key factor and older children can have the maturity and capacity to make important decisions about their own medical treatment whereas others may not have reached that level of maturity at the same age. It is imperative that professionals assess maturity and the individual’s capacity to understand issues surrounding the proposed treatment and risks (Ogston-Tuck 2013, Griffith 2017). An important ruling regarding the competence of a child to consent to treatment is the ‘Gillick competence’ (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL)). This ruling was concerned with the prescription of contraceptives without parental approval. Even where the child was felt not to be competent, confidentiality is still expected for the consultation.

Older people and capacity to consent

  • Care is needed not to make assumptions that patients diagnosed with a cognitive impairment are unable to participate in the informed consent process.
  • Patients with cognitive impairments may be able to participate in the informed consent process after adaptions are made in the way the information is presented.
  • Simplifying the material, using audiovisual aids, and allowing longer consideration time increases the older person’s ability to participate in care decisions.

Special considerations

  • In emergency treatment situations, consent is considered ‘implied’, that is, obtained without needing to wait for the patient to be in a position to accept or refuse treatment because of the urgency of the situation.
  • The standard for emergency implied consent is that the patient would suffer imminent harm (loss of life or limb) if the decision was to be delayed.
  • Emergency psychiatric medication may be given only where records show the discussion related to the treatment and the necessity. The Mental Health Capacity Act  (Department of Health 2005) does not authorise anyone to give treatment to a patient for a mental disorder. In all situations treatment for mental disorders is regulated under Part 4 of the Mental Health Act (Department of Health 2007).

Patient and family education

  • The nurse must establish the level of understanding that the patient and the family have about the informed consent process. This might involve the recapping of diagnosis, and care and treatment options. A clear and unambiguous explanation of the pros and cons of care and treatment, and the potential time frame for any outcomes is essential.
  • An atmosphere that is conducive to free discussion is needed in order to establish, where possible, a collaborative experience that allows for explanation and questions related to any misunderstandings or fears. These must be clearly addressed in a manner that can be understood and where the patient and their family can engage in informed choices.

Preparation and safety

  • Even when a patient gives consent to some care or treatment, care must be taken that the right checks have been made to establish that they are able to do so. An example of this may be a patient with early stages of dementia, someone with a manic or psychotic illness, or someone with a level of confusion.
  • As a nurse you must establish if there are any existing or potential issues that may affect the cognitive or physical ability of the patient, as these may affect the consent process.
  • Assess language (even though some command of language may be evident) as to whether interpreters may be needed to ensure consent is gained.
  • A common problem can be the nurse’s assumptions relating to their perceived understanding of the patient’s ability. Ensure you know whether the patient can read and write, find out their preferred mode of communication, and ensure their cultural, religious, and spiritual needs are discussed.
  • In some circumstances the patient may have an advocate or someone appointed to make decisions for them. Ensure that the advocate is aware of the assessment and involved as soon as possible.
  • The assessment process should explore the biological, psychological, and sociological aspects of health and establish any risks the patient may present to self or others.
  • The nurse must examine if the patient is potentially vulnerable to exploitation by others and/or if they have suffered neglect or could do so in the future.

Procedure

  1. Know the Department of Health, NMC, and the Trust’s policies regarding informed consent.
    Rationale – Nurses should be familiar with all written policies regarding patient care.
    Nurses need to adhere to written Trust policies that are based on a model developed by the Department of Health. These policies are regularly updated and will detail consent issues in relation to mental capacity and deprivation of liberty safeguards.
  2. Always notify the doctor about any concerns regarding the patient’s capacity to make informed medical decisions.
    Rationale – The intimate nature of the nurse–patient relationship can provide important information relevant to the patient’s capacity to make informed health related decisions.
    In relation to medical procedures, the doctor is generally accountable for gaining informed consent; however, nurses and other healthcare providers may also be held accountable for procedures and care that they perform with any patient. Clear, unambiguous record keeping of information related to consensual issues is important, especially should any complaint be forthcoming about the care given by nurses. 
  3. Always confirm that a signed informed consent form is in the patient’s records before any ordered medical procedure is performed and inform the appropriate doctor in respect of this.
    Rationale – Doctors and certain other health professionals have a duty to obtain informed consent from the patient before performing any medical procedure.
    Nurses may be liable for professional negligence or battery when they know or should have known by checking the patient’s records that a doctor did not obtain informed consent and conducted some medical procedure.
  4. Confirm the following before accepting the patient for a medical procedure when the doctor has not completed the consent forms on the day:
    1. no concerns exist about the patient’s capacity to make medical decisions
    2. the patient was given the necessary information to make an informed decision
    3. the patient received information about the treatment that included the goal of the treatment, risks involved, expected benefits, alternative treatments, and consequences of no treatment
    4. the patient had an opportunity to ask questions about the procedure and had all questions answered to their satisfaction
    5. the patient voluntarily agreed to the procedure.
      Rationale – When patients attend for elective procedures, commonly the consent paperwork has been completed in outpatients. The nurse will usually check all the information above remains in place.
      Consent is often misinterpreted, in assuming that if a consent form has been signed then the patient understands and agrees to what care they are to have. The signature is evidence that they have consented, but not that they have given valid consent. This is an issue if the process was rushed and too little information was provided. In a similar vein, some patients will be unable to sign, and verbal consent is accepted under the same themes above.
  5. Immediately notify the doctor if no signed consent form is in the patient’s record for any medical procedure.
    Rationale – The nurse has a duty to protect the patient’s right to self-determination and autonomy in medical decision making.
    Nurses need to make the care of people they are working with a primary concern and treat them with dignity with the aim of promoting and protecting their right to make decisions related to their care and treatment (Nursing and Midwifery Council 2018). Ensuring consent has been reached will place the patient in a position of control and empowerment over their care and treatment. This will also protect health professionals from engaging in care or treatment without the necessary consent.
  6. Know the standard for emergency implied consent.
    Rationale – Doctors and certain other health professionals can act unilaterally to make medical decisions without informed consent in an emergency situation.
    There is a legal presumption that adults have the capacity to decide whether to accept or reject treatment. When a patient is encountered in a position where consent cannot be established (e.g. they may be unconscious), treatment may be given to preserve life (Mental Capacity Act 2005). Interventions and care felt to be in the patient’s best interest but that can be delayed until the patient may be able to give consent should be delayed. Remember that the loss of capacity may be only temporary and will need to be reassessed regularly.

Ongoing care, monitoring and support

  • Establish if the person is unable to give consent and the factors that may cause this:
    • If the person is visually impaired or hearing impaired, have the necessary aids or support been utilized to engage them so as to establish their view?
    • If the person is highly anxious, has the level of distress subsided sufficiently for them to take part in the decision making?
    • If pain is present, has this been addressed but not to a level where consciousness may be impaired?
    • If English is not the person’s first language and they feel, or you or others feel, that this may impair their understanding, then an appropriate interpreter must be used (but where possible not a family member).
  • Limit jargon so as not to confuse people who may have difficulty understanding the consent concept. Where necessary a guardian or appointee may be used.
  • Address cultural and spiritual misunderstandings for both the patient and their family in order to aid consent.
    Rationale – Determines the factors that affect the person’s capacity to consent.
  • If the patient has an appointee or a legal care coordinator, ensure that they are informed of any treatment for the patient.
    Rationale – Ensures that those acting for the patient are fully aware of treatment issues.

Documentation and reporting

The nurse’s actions and observations are important and must be reported and documented. Document in the patient’s nursing notes the following:
  • Any concerns about the patient’s capacity to make decisions.
  • Any nonpermanent barriers to informed consent.
  • All corrective actions to remove barriers to informed consent.
  • Any cultural considerations in delivering the patient’s care.
  • Informed consent in the patient’s records before the procedure.
  • Name and contact information of any appointee, guardian, or legal representative.
  • Names of next of kin and nearest relative, and whether they have been informed about consent issues.
  • Details related to emergency implied consent.
  • Any care or treatment that may be needed when consent cannot be gained; record discussions.
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