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Practice dilemma: Capacity to consent

You visit a patient with mild dementia at home and find that he is very anaemic and unwell following likely GI bleeding. His family insist that he is confused and isn’t thinking clearly. You believe he is communicating fairly well, however. How do you assess and manage the patient?

The important issue in this scenario is the mental capacity of the patient. You are placed in a difficult situation because a clear refusal of treatment is being expressed by the patient, but the family are challenging this. There is also some pressure in terms of timing, so it may be difficult to arrange specialist assessment of capacity.

In assessing the patient, it is important to remember that capacity is task specific – you are only focusing on the particular treatment issue in question, in this case admission for treatment of life-threatening bleeding. You should begin with a presumption of capacity and not make prejudgments based on the medical condition.

You must also give the patient as much support as possible to make a decision independently by explaining the situation in terms he may understand, avoiding – for example – hurried explanations or medical jargon.

The patient must understand his condition, the reasons for treatment and the implications should he refuse, including the risk of death. He must be able to retain the information long enough to make a decision, and communicate this clearly and consistently when questioned.

If he appears capable of this, his refusal of treatment is valid and must be respected, regardless of family concerns. In terms of testing consistency, he could be visited later for review to see if his view has changed.

If, on the other hand, he appears to lack capacity, he must be treated under the terms of the Mental Capacity Act 2005 or the Adult with Incapacity (Scotland) Act. This advises treatment in the best interests of the patient, using the least restrictive option, taking account of any previously expressed wishes of the patient and also giving consideration to the views of relatives and carers.

It may be that a relative has been granted a valid power of attorney covering welfare issues, in which case that relative may act as a legal proxy decision maker once the patient has lost capacity. Power of attorney for financial matters only does not cover this type of decision.

If the patient has prepared an advance directive, this too may be valid in terms of refusing treatment. However, it would have to be written in clear terms to cover this specific life-threatening scenario, which may be unlikely in an unforeseen emergency of this kind.

In this scenario it is clear that the patient's best interests are likely to be served by admission for treatment, and the family is in agreement. If, however, there was a dispute and the family objected, under GMC guidance you should aim to reach consensus by discussing the situation fully with them.

In non-urgent situations, the options of a second opinion, mediation services or even court action can be considered, but for this patient there would be no time for such steps and you would therefore have to take whatever action you considered to be safest for the patient, pending resolution of any disagreement.

In terms of the treatment itself, the Mental Capacity Act allows ‘restraint' that is the minimum necessary and is proportionate to the likelihood and seriousness of the harm. While ‘deprivation of liberty' safeguards have been enacted in England to accompany the act, it is stated in the relevant code of practice that transfer to a hospital in an ambulance will usually not be considered deprivation of liberty requiring specific authorisation.

Finally, whichever decision is made for the patient it is important for you to record carefully the steps you have taken to assess capacity and the reasons for the decisions made.

Dr Barry Parker is a medical adviser for the UK-wide Medical and Dental Defence Union of Scotland

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