Consent and Capacity


Mental Capacity Act

  • Presumption of capacity unless established otherwise
  • Implied consent for areas such as venepuncture, physical examination, small wound closure, ECG recording may be demonstrated by cooperation with the procedure
  • Treatment may be provided without patient consent provided the treatment is immediately necessary to save life or prevent serious deterioration
  • Persons detained under MHA on ground of mental illness may be treated without consent for mental disorder
  • Physical health problems related to mental disorder may also be treated
  • If short term restraint is required in the ED, this is restriction rather than deprivation of liberty (therefore don’t usually need to fill in DOLS paperwork


Determining Capacity

  1. Understand the information given to them that is relevant to the decision
  2. Retain that information long enough to be able to make the decision
  3. Use or weight up the information as part of the deciosn making process
  4. Communicate that decision


Capacity to consent may be may be affected by many factors, however all practical and appropriate steps should be made to give a patient the best chance of being able to make a decision


A person may make a decision which is considered to be unwise by others if they have the capacity to do so, although a decision of this kind should prompt a re appraisal of reality and ensure that the patient is not delusional.

However if the person has capacity their decision must be respected even if this may result in the death of the person or unborn child


If a patient is lacking ability to make a decision or it is not possible to obtain consent, treatment can be provided without patient consent provided that the treatment is immediately necessary to save life or prevent serious deterioration. A presumptoms should be made in favour of provided life sustaining treatment.


All relevant information should be considered including patient’s past wishes, a valid and applicable advance refusal of treatment, their beliefs and values, and any other factors the patient may consider if (s)he were able to do so.


The views of others should also be taken into consideration:

  • Next of kin
  • Carers
  • Person with LPA
  • Deputy appointed by the patient by the court


Best interests decision may also include with holding or stoping treatment



Only the patient can consent to procedures. We should ensure that any consent decision was made by the patient and that they were not under undue pressure by family or others.


The Bolam test:

Should advise the patient of all significant possible and and/ or unavoidable risks however unlikely, the potential benefits of treatment, the risks incurred by doing nothing.


Clinician responsible for providing the treatement is responsible for ensuring that valid consent has been obtained.


A competent patient can withdraw consent at nay time; their wishes must be respected.


Even if the patient does not wish to know, enough info should be given to ensure that a valid consent has been achieved, eg what is likely to be involved, the pain involved and how this will be managed, and any serious risks. Their refusal to discuss should be documented carefully.




16 – 17 yr olds have capacity therefore can consent to and refuse treatment. Parents may also provide consent on their behalf (under the Children Act). Complex cases may need discussion with Trust Lawyers.


However if refuse treatment, this may be over-ruled by the courts if they are likely to suffer harm as a result.


Under 16

May consent if they have capacity

Good practice to involve both child and their parents in discussions

Children who lack capacity can be treated if consent is provided by parents, temporary carers, local authorities or courts.


Mental Health

Patients detained may be treated for their mental disorder. Physical problems may be treated if they are part of the mental illness.


However it cannot justify treatment for physical conditions unrelated to the mental disorder. If necessary and cannot wait until the mental illness has been treated, capacity should be carefully considered, if no capacity treatment should proceed.