Capacity and Competence

Question 1

For consent to be valid, it needs to be:

Answer 1

• Informed
• Voluntary
• Capacitous

Question 2

when can someone not give consent?

Answer 2

Not everyone will be able to make decisions about their care - they may lack
capacity to do so
This means they cannot give valid consent

Question 3

what is autonomy?

Answer 3

self- legislation
the ability of an individual to choose how to live their life in accordance
with their own values and beliefs

Question 4

why is autonomy important when it comes to capacity?

Answer 4

Capacity is a pre-requisite for autonomy - losing capacity means losing the ability
to decide in accordance with our own values
While capacity is prerequisite, that doesn’t mean it’s the only factor
Capacity is linked to the facility to reason according to our own beliefs and values.
To be truly autonomous, we must have a stable sense of self and our values -
autonomy is about a person’s whole identity

Question 5

is having capacity enough to give full autonomy?

Answer 5

no
Material and social conditions often curtail people living as they would wish to do -
even when it comes to healthcare decisions
To have full autonomy, you must be able to freely make the choices that will
really affect your life

Question 6

what is the role of society regarding autonomy?

Answer 6

The role of a society is to maximally endow its citizens with the ability to make autonomous decisions
This is a form of individualism

Question 7

what could be a problem if everyone makes their own autonomous decision?

Answer 7

the problem is that the autonomous wishes of individuals often conflict
People may want things that are unfair, or detrimental to others
What we end up with is a battery of rights, which are constantly competing with those of others

Question 8

what makes an autonomous decision?

Answer 8

Reason enabling autonomy
If the reason is absent / diminished, the decision is suspect - it is not truly
autonomous

Question 9

what factor would diminish someones capacity?

Answer 9

Anything that interferes with an individual’s ability to make decisions generally will
diminish their capacity.

Question 10

To have capacity, a patient must be able to :

Answer 10

• Understand the presented information
• Retain the information
• Weigh up the decision
• Communicate that decision

Question 11

should you assume that someone doesn’t have capacity?

Answer 11

You should never assume that someone doesn’t have capacity.
Instead their capacity to make this particular decision should be assessed, with
the information presented in the most accessible way possible.
A patient may have capacity to make some decisions, and not others.
You should provide all possible help and support to enable them to make the
decision - eg. translators if needed, written information, time to consider, detailed
explanation

Question 12

what does GMC guidance say about capacity?

Answer 12

You must start from the presumption that every adult patient has capacity
to make decisions about their treatment care.
You must not assume a patient lacks capacity to make a decision solely
because of their age, disability, appearance, behaviour, medical condition
(including mental illness), beliefs, their apparent inability to communicate,
or because they choose an option that you consider unwise.

Question 13

does presuming someone of capacity have limits?

Answer 13

While we are told to presume capacity, this does not give medical professionals
freedom to ignore signs that a patient may not have capacity
If a patient’s decision-making seems erratic, or you know they have a condition
which could affect their ability to make decisions, an assessment of their capacity
to make this decision should be performed in the interests of protecting the
vulnerable
This is considered particularly important if the decision may be life-threatening

Question 14

explain the Arskaya v Ukraine [2013] ECHR 1235 example case (fix this)

Answer 14

European Court of Human Rights
found a breach of the Article 2 ECHR (European Convention of Human Rights)
operational duty (right to life)
“despite S. showing symptoms of a mental disorder, the doctors took those
refusals at face value without putting in question S.’s capacity to take rational
decisions concerning his treatment. Notably, if S. had agreed to undergo the
treatment, the outcome might have been different.” (para 87).

Question 15

what is the 2 stage test?

Question 16

what are the 2 stages in the 2 stage test?

Answer 16

Stage 1. Is there an impairment of or disturbance in the functioning of a
person’s mind or brain? If so,

Stage 2. Is the impairment or disturbance sufficient that the person lacks the
capacity to make a particular decision?

Question 17

describe stage 1 in the 2 stage test

Answer 17

Capacity is considered the dominion over decision-making
‘Disorders of mind or brain’ that can interfere with it include obvious things like
some mental health conditions, brain damage, strokes, learning difficulties
However they can also include factors from elsewhere in the body affecting brain
function - eg. pain, or overwhelming emotional states, in extreme situations

Question 18

describe stage 2 in the 2 stage test

Answer 18

Is the impairment or disturbance sufficient that the person lacks the capacity
to make a particular decision?
- Understand the presented information
- Retain the information
- Weigh up the decision
- Communicate that decision

Question 19

what do you need to consider when assessing a patients understanding of the information you give?

Answer 19

• What information is salient (matters to them) to the decision?
• How can it best be presented to be accessible?
• Don’t assume prior knowledge (eg. that they know what life in a care home
  would be like)
• Don’t set the bar too high:
• They don’t need to understand everything - just the salient information
• They need to understand well enough to make the decision

Question 20

what do you need to consider when assessing whether a patient can retain the information?

Answer 20

needs to be able to retain enough information for a sufficient amount of time
in order to make a decision.
The MCA specifies at s.3(3) that ‘the fact that a person is able to retain the
information relevant to a decision for a short period only does not prevent him from
being regarded as able to make the decision.’

Question 21

what do you need to consider when assessing whether or not a patient can weigh the information given?

Answer 21

‘the capacity actually to engage in the decision-making process itself and to be able to see the various parts of the argument and to relate the one to another.’ The PCT v P, AH & the Local Authority [2009]
It does not mean that, having related these arguments to each other, they reach a rational conclusion
Again, they only need to weigh salient information
It is easier to decide whether they are weighing the information appropriately if you
know more about their value system
they don’t have to come to a rational conclusion- as long as its their conclusion that they made autonomously

Question 22

what do you need to consider when assessing a patients ability to communicate a decision?

Answer 22

Facilitate communication as far as you can:
- reproduce the manner by which they usually communicate
- provide all necessary tools and aids
- enlist the support of any relevant carers or friends

Question 23

give an example that shows that capacity is dynamic

Answer 23

eg. a high-functioning individual can be temporarily rendered without capacity -
say acutely after a stroke, but symptoms may subsequently improve such that
they could again take an active part in decision-making
Capacity is the ability to make this particular decision, at the material time (bc capacity can change/ fluctuate)

Question 24

do you have to agree with a patient for them to be considered having capacity?

Answer 24

Capacity is independent of whether you agree
Just because a person makes a decision that seems irrational to you, it does not
mean they do not have capacity to make it.

Question 25

is someone with capacity allowed to demand treatment?

Answer 25

It does not allow the right to demand treatment that a doctor does not think is medically indicated, or in the patient’s best interests
even if they have capacity, they are only allowed to choose between, or refuse offered treatments not demand
Patient autonomy must be weighed against what is objectively best for them
(beneficence) and the fair distribution of resources (justice)

Question 26

what is the Mental Capacity Act (2005) and what are the 5 key principles?

Answer 26

Applies to all those involved in the care of those who are over 16 and lack the
capacity to make some or all decisions for themselves
Underpinned by five key principles :
1. Presumption of capacity
2. Support of individuals to make decisions
3. Unwise decisions
4. Best interests
5. Least restrictive option

Question 27

what do you do if your patient doesn’t have capacity?

Answer 27

You are responsible for deciding what would be of overall benefit to your patient.
In doing this you must:
a. consult with those close to the patient and other members of the healthcare team,
take account of their views about what the patient would want, and aim to reach
agreement with them
b. consider which option aligns most closely with the patient’s needs, preferences,
values and priorities
c. consider which option would be the least restrictive of the patient’s future options.

Question 28

what’s the first thing to consider if someone doesn’t have capacity?

Answer 28

Can it wait?

If the loss of capacity is temporary - eg. after neurosurgery, or a head injury - can
the decision be postponed until the patient would have capacity again?

Question 29

what’s the second thing to consider if someone doesn’t have capacity?

Answer 29

What would be best in general?

Is there one course of action which offers clearly better odds of a good clinical
outcome?
Would there be any likely drawbacks with this treatment?

Question 30

what’s the third thing to consider if someone doesn’t have capacity?

Answer 30

What would be best for this specific person?

Are there any risks you know this patient wouldn’t be willing to take?
Are there any outcomes that they would value above all others?
eg. consider two unconscious patients with severe, rapidly spreading infection in
one leg. One of them has previously stated to you that they would want to save
their leg and can’t imagine living “as a cripple”. The other has previously told you
that “the only thing they care about is making it through”.

Question 31

what’s the fourth thing to consider if someone doesn’t have capacity?

Answer 31

Can you get any more information?

Are there any relatives / carers, or other medical professionals, who might know
more about what this patient would want than you?
Has this patient left any instructions - for example, with a GP?
have they left any written instructions e.g advanced statements

Question 32

what is an advanced statement?

Answer 32

any information which the patient feels is relevant to their
future care, should they lose capacity to make decisions

Question 33

what is an advanced decision?

Answer 33

refers only to the advanced decision to refuse certain treatment in specified circumstances

Question 34

Advanced decisions are legally binding, as long as they meet certain criteria:

Answer 34

• In writing
• signed by the patient
• signed by a witness

They only cover the circumstances and treatments specified

Question 35

what’s the fifth thing to consider if someone doesn’t have capacity?

Answer 35

Is there anyone else who has the right to decide?
Lasting Power of Attorney : two types - health and welfare / property and
financial affairs
Legal document, conveying power to make certain decisions to a named person
whenever the donor has lost capacity
Next of kin does not have the right to make these decisions without a LPA.
An LPA needs to be registered with the Office of the Public Guardian (OPG).
Anyone can be appointed as an attorney, as long as they have mental capacity
themselves

Question 36

what’s the sixth thing to consider if someone doesn’t have capacity?

Answer 36

If there is a total lack of information
Independent Mental Capacity Advocate :
● The person is aged 16 or over
● A decision needs to be made about either a long-term change in
accommodation or serious medical treatment
● The person lacks capacity to make that decision, and
● There is no one independent of services, such as a family member or friend,
who is “appropriate to consult”

Question 37

what is the court of protection?

Answer 37

created in 2005 with the mental capacity act
making decisions on whether someone has mental capacity
- handling best interests’ disputes
- ruling on questions about deprivation of liberty

The Court of Protection can appoint Deputies to make decisions
- longstanding lack of capacity
- not previously established a LPA

Question 38

what does the UK and USA say about competence and capacity?

Answer 38

In UK law, the term competence is used exclusively to denote whether or not a
person under 16 years of age can make autonomous decisions about their health
n the USA, the term competence can refer to a long-term judgement that a patient
lacks capacity, taken by a court

This term is not used in this way in the UK

Question 39

what is competence?
where did the term come from?

Answer 39

refers to the ability of a child or young person to consent to
treatment. It is often used interchangeably with ‘capacity’ (eg. in GMC guidance).
However while you can talk about capacity or competence for someone under 16
in the UK, the term competence is not used in a legal context with adults (as they
fall under the MCA)
The use of the term comes from a famous case, where the ruling established the
basis for establishing competence in those under 16 years of age

Question 40

explain the Gillick v West Norfolk & Wisbeck Area Health Authority [1986] case

Answer 40

Mrs Gillick was a mother with five daughters under the age of 16. She sought a
declaration that it would be unlawful for a doctor to prescribe contraceptives to girls
under 16 without the knowledge or consent of the parent.
The declaration was refused.

Question 41

what did the Gillick v West Norfolk & Wisbeck Area Health Authority [1986] case lead to?

Answer 41

Led to the standard of ‘Gillick competence’ to consent to treatment
children under 16 can consent if they have sufficient maturity and intelligence to fully
understand what is involved in a proposed treatment, including its purpose, nature, likely
effects and risks, chances of success and the availability of other options.
It is assumed that those over 16 have Gillick competence.

Question 42

define maturity in context to competence

Answer 42

takes account of the child’s experiences and the child’s ability to manage influences
on their decision making such as information, peer pressure, family pressure, fear and
misgivings.

Question 43

define intelligence in context to competence

Answer 43

akes account of the child’s understanding, ability to weigh risk and benefit,
consideration of longer term factors such as effect on family life and on such things as
schooling.

Question 44

what is the science behind maturation?

Answer 44

The area of the brain most associated with anticipating consequences and
managing far-reaching decisions is the pre-frontal cortex
This is one of the slowest brain areas to mature during puberty, the process
continuing until ~ age 25y
Adolescents have been shown in research to handle risk differently to adults, and
to be particularly vulnerable to peer pressure

Question 45

what guidelines did the Gillick v West Norfolk & Wisbeck Area Health Authority [1986] case lead to?

Answer 45

The case also led to the development of the Fraser guidelines by Lord Fraser.
These refer specifically to whether or not someone under 16 can be prescribed
contraceptives without parental knowledge.
They are not related to broader competence.

Question 46

what are the Fraser guidelines?

Answer 46

He/she has sufficient maturity and intelligence to understand the nature and implications of
the proposed treatment
● He/she cannot be persuaded to tell her parents or to allow the doctor to tell them
● He/she is very likely to begin or continue having sexual intercourse with or without
contraceptive treatment
● His/her physical or mental health is likely to suffer unless he/she received the advice or
treatment
● The advice or treatment is in the young person’s best interests.
Originally applied to contraception - now also apply to treatment of STIs and TOP (since 2006)

Question 47

how do you determine validity of consent?

Answer 47

Just because they are competent to give consent, does not mean all consent will
be valid
It still needs to be informed, and voluntary
Children may be particularly vulnerable to coercion

Question 48

what do you do if a child isn’t Gillick competent?

Answer 48

GMC :
“If a child lacks the capacity to consent, you should ask for their parent’s consent. It is usually sufficient to have consent from one parent. If parents cannot agree and disputes cannot be resolved informally, you should seek
legal advice about whether you should apply to the court.”

Question 49

what factors need to be considered when parents make the decision for their child? (no need to memorise this)

Answer 49

Scope of Parental Responsibility (2015)
1. Is this a decision that a parent should reasonably be expected to make?
○ whether the child or young person lacks Gillick-competence/capacity?
○ what is considered normal practice in our society?
○ the type and invasiveness of the proposed intervention;
○ the age, maturity and understanding of the particular child/young person;
○ the extent to which the child/young person agrees/resists;
○ any relevant human rights’ decisions of the Court

2. Are there any factors that might undermine the validity of this particular person’s parental consent?
   ○ parent cannot make decision – e.g. incapacitated themselves;
   ○ parent unable to focus on the best interests of the child/young person;
   ○ significant distress of parent – i.e. to the extent that they’re overwhelmed;
   ○ disagreement between parents

Question 50

how is competent refusal of treatment dealt with as opposed to competent consent?

Answer 50

Competent refusal of treatment that appears to be in their best interests is treated
differently in law than competent consent
GMC :
“Parents cannot override the competent consent of a young person to treatment that you
consider is in their best interests. But you can rely on parental consent when a child lacks the
capacity to consent.
In Scotland parents cannot authorise treatment a competent young person has refused. In
England, Wales and Northern Ireland, the law on parents overriding young people’s
competent refusal is complex.You should seek legal advice if you think treatment is in the
best interests of a competent young person who refuses.”

Question 51

explain the case of Re:W (1991)

Answer 51

young person aged 16
- deemed competent
- refusing expansion of current treatment regimen for anorexia nervosa and transfer to a specialist unit.
Legal argument: under the Family Law Reform Act (1969) :
“(1) The consent of a minor who has attained the age of 16 years to any … medical … treatment which, in the absence of consent would
constitute a trespass to his person, shall be as effective as if he were of full age; and where a minor has by virtue of this section given an
effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.”
and that since she had the right to have her consent honoured, the same should apply to her refusal.
The judge disagreed, ruling that the court had power to override the wishes of a competent young person and consent to the treatment.
The court had to balance between the expressed views and feelings of the child and the harm which the child was at risk of suffering.
- irreversible damage to cognitive development and reproductive maturation which could occur if W was not treated

Question 52

what is least restriction?
has the UK ever upheld a competent refusal?

Answer 52

aims to enhance an older person’s autonomy and respects their rights, individual worth, dignity and privacy

No UK Court has ever upheld the competent refusal of a minor to lifesaving
treatment.
This leans on both the Human Rights Act (1998) (s2. right to life) and the
Children’s Act 1989 (paramount duty to the welfare of the child)
The premise is to allow the child to reach adulthood, keeping the most options
open

Question 53

can parents overrule the refusal to consent?

Answer 53

yes
Parents do not lose the ability to consent on their child’s behalf once the child
gains Gillick competence. Therefore, they could provide the consent that the child
will not
However, this is acknowledged as a “dwindling right which the courts will hesitate to
enforce against the wishes of the child”. Hewer v Bryant [1970]
There has been increasing focus on the autonomy of the child since the passing of the Human
Rights Act 1998.
In practice, it is advisable to seek a ruling from the Court of Protection in this situation