Assessing Capacity and Gaining Consent


Background and Important Points

  • The main legal statute that covers this area is the Adults with Incapacity (Scotland) Act 2000
  • Note that capacity is SPECIFIC TO A DECISION (not generalised to an individual)
    • i.e. the patient can have the capacity to decide what they would like for dinner but may lack to capacity to manage their finances
  • In the context of healthcare, it is important that decisions
    • benefit the individual
    • take account of the individual’s wishes as far as possible
    • take account of the views of relevant others, as far as it is reasonable to do so
    • restrict the individual’s freedom as little as possible while still achieving the desired benefit
    • encourage the individual to exercise residual capacity
  • The AWI Act assumes that ALL ADULTS (>16 years) have capacity (i.e. incapacity cannot be presumed based on presence of mental illness/dementia; irrational behaviour/refusing treatment etc)
    • I.e. assessment of capacity should be based on comparison of logic but on the process by which the individual is making the decision

Principles of Capacity

  • The patient is able to
    • Receive and Understand in simple language- what the treatment is, its purpose and nature and why it is being proposed
    • Understand the principle benefits, risks, alternatives and disadvantages (if any)
      • They must also believe the information being given to them (this may be a problem if patients have thought or cognitive problems)
    • Understand the consequences of not receiving the treatment
    • Retain the information long enough to use it and process it in the balance to arrive at a decision
      • i.e. has adequate memory; is able to communicate their understanding and choice (often which is in keeping with the moral/personal character of the individual)
      • Memory can be formerly tested e.g. using Addenbrookes test
    • Retain the memory of these decisions
    • AMCUR (Acting on decisions; Making decisions; Communicating decisions; Understanding decisions; Retaining memory of decisions)
  • In gaining consent, if there is concern that the patient does not have capacity (in the short term or for a specific decision)- it may be appropriate to apply for a certificate of incapacity, which would allow the doctor to treat in the patient’s best interests
    • Where incapacity is likely to be a long-term issue, ideally a named person (relative/friend) can be given welfare attorney (presuming the patient has the capacity to make that decision).  If this is not done, a welfare guardian can be appointed to make decisions on the patient’s behalf regarding their health.
  • NB If assessing capacity for personal care/finance issues, whilst the principles are the same, the approach may be different.  See here for a good resource with ways to do this.

Steps that can be taken 

  • If the patient is considered to lack capacity, there are several options
  • Power of attorney- can be granted to an individual known to the patient (usually close relative) who will be able to make decisions regarding the individual’s treatment/welfare (or finances etc).  Where there is no person suitable for such a role, the doctors/health care professionals may be granted a general authority to treat and/or a ‘welfare guardian’ may be appointed (somebody appointed by the court, usually from the council, to make proxy decisions)


  • Largely the same as for capacity i.e. Understand what is involved, the benefits/risks/alternatives, the consequences of omission, retain and process the information to make an informed decision, communicate the decision
  • As a health care professional, you should aim to give the individual all the relevant information about the treatment/intervention, risks, benefits, side effects, complications
    • Do not put any pressure/weighting on a particular option (you may give your recommendation- remain unbiased as possible)
    • Offer the opportunity to ask questions and answer them all as best you can.
      • Do NOT give false hope
    • Where a patient does not wish to receive certain information, you must explain the risks of them not having it (e.g. if anything does happen)
      • Record this in the notes
    • Where there are family, friends etc whom the patient wishes to be involved, information may be shared with them (gain patient consent as to what information you can share with them where appropriate e.g. where the patient does not wish to know certain information)
  • Before taking consent, always check the patient’s understanding
  • Make sure to get the correct form of consent
    • For minor procedures, verbal or implied consent will often be enough
    • For major procedures and for the following underlying situations, written consent is preferred where possible
      • Organ Donation and Fertility treatments (required by law)
      • Investigations/treatments which are complex or involves significant risks
      • There may be significant consequences for the patient’s employment, social or personal life
      • Providing clinical care is not the primary purpose of treatment/investigations
      • The treatment is part of a research programme or is an innovative treatment designed specifically for the patient’s benefit
      • In children <16, written consent is preferred
  • All decisions should be recorded in notes
  • Decisions are not binding and can be reviewed, particularly where a significant amount of time has elapsed or if there have been any change in circumstances

Advance Care Planning

  • If a patient
    • has a condition that will affect the length or quality of their life, or
    • has a condition that will impair their capacity as it progresses, such as dementia, or
    • is otherwise facing a situation in which loss or impairment of capacity is a foreseeable possibility
      • discussion about advance care planning should be considered
    • give advice about how to go about this and who the patient would want involved
      • consider also things like DNA CPR forms
  • Where possible, make sure that all involved in the patient’s care understands these decisions, who is involved etc
  • Where there is already an advance care plan in place, or a named individual responsible for the patient’s welfare and health, these should be respected at all times

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