Chapter 3: Mental Capacity and Consent

Introduction

As a nurse, you have a wide range of responsibilities and expectations when managing patients. Any time that you interact with a patient, it is important that you act ethically and respect the rights of the patient. This means asking the permission of the patient before placing your hands on them, or before administering medication or other types of therapy. The aim of this chapter is to provide an overview of how to assess the ability of patients to make decisions. This will include an assessment of the terms capacity and consent, and how they apply in multiple care contexts.

Defining capacity and consent

Capacity can be defined as the ability of an individual to make their own decisions (Dhai & Payne-James, 2013). Within a nursing context, this means that patients have capacity when they are able to agree to or decide on any health intervention, treatment course or assessment. However, it is not enough for a patient to express an opinion favouring one course of treatment over another, or to simply agree or disagree with nurses. There are four main elements to capacity, and a failure of a patient to meet any one of these elements suggests that they lack the capacity to make the decision:

1. The patient must understand the information provided to them in order to make the decision.
2. The patient must be able to retain the information for long enough to make the decision.
3. The patient must be able to weigh up the information to make the decision.
4. The patient must be able to communicate their decision.

The importance of capacity is that patients can give their consent for a procedure or interaction to occur. Nurses need to obtain consent for almost all interactions with patients - particularly when performing examinations, making care decisions or deciding on other aspects that may affect the wellbeing or health of the patient.

The Mental Capacity Act (Department of Health, 2005) was broadly implemented in practice from 2007 onwards. This act serves as a form of protection for patients who lack the capacity to make decisions. There are five main principles to the Mental Capacity Act:

1. Capacity should always be assumed- the diagnosis, appearance or behaviour of a patient should not make you presume that capacity is absent.
2. The assessment of capacity requires optimisation of the patient's ability to make decisions- sufficient time must be given to patients, while the use of sign language or interpreters may be important.
3. Patients can make unwise decisions- capacity relates to the process of making a decision, not the final decision the patient makes, even if this is different to your own opinion.
4. Decisions made for people lacking capacity should consider their best interests.
5. Decisions made should be the least restrictive for patient rights and freedoms.

When you make decisions for patients lacking capacity, or attempt to assess capacity in a patient, all of these principles should guide the assessment process. This means that when you meet a patient, you should not make any assumptions about their capacity or ability to provide consent, and it means that a detailed assessment of capacity is always necessary. Decision-making in nursing care requires balancing the needs of the patient, the rights of the patient and the patient's views in this manner, when capacity can be demonstrated.

Causes of mental impairment

Mental impairment may be caused by a number of factors in clinical practice and it is important to recognise which specific scenario is present for an individual patient. The main conditions that cause a lack of capacity, either on a temporary or permanent basis, are: mental health problems, learning disabilities, dementia, stroke or brain injury, confusion or drowsiness due to illness or certain medications, and substance or alcohol misuse. For each of these conditions, patients may be affected in different ways and the impact on their capacity and ability to provide consent can vary accordingly. Each of these conditions will now be addressed individually.

Learning disabilities

Patients with learning disabilities may have varying levels of mental impairment, depending on the cause of their disability and the severity of their condition. It is important that you do not make assumptions about these patients based on their appearance or diagnosis, as they may still have capacity to make decisions. Often it is the case that patients with learning disabilities do have the capacity to make small decisions about their everyday life, including what to do, what to wear or what to eat. For major decisions, particularly about care, these patients may not have capacity, as they may not be able to understand or retain information and weigh up the positive and negative impacts of this information.

Mental health problems

Mental health problems may include diagnoses such as generalised anxiety disorder, bipolar disorder, depression and schizophrenia. Patients with these conditions may be in the acute phase of their illness, where symptoms are most severe and may impact on their life immensely, or may be in the chronic or recovery phase of their condition, where symptoms are less pronounced. When patients are acutely unwell, they may not be able to demonstrate capacity for a number of reasons, including poor understanding of information, an inability to objectively weigh up that information, or an inability to communicate. Patients who are depressed may also favour no intervention on the basis that they do not wish to preserve their life or are apathetic towards outcomes. Therefore, decision-making is impaired in some instances and would lead to decisions that are not in the best interests of the patient. However, in the recovery or chronic phase of mental health conditions, when patients are objectively 'well', capacity may be preserved and consent can be given for many, if not all, decisions.

Stroke or other brain injuries

Stroke is a common medical condition caused by ischaemia or haemorrhage in brain tissue. Depending on the location of the stroke, patient speech, understanding or cognition may be adversely affected. Therefore, in some patients there may be difficulties that arise when determining capacity. For instance, in patients who are not able to communicate effectively (e.g. poor speech), they may not be able to express their capacity to make decisions, a key aspect of the capacity process. Every attempt should be made to try and communicate with the patient, but when this is not possible, a professional should act and make decisions based on the best interests of the patient. In addition, patients who can communicate after a stroke may have difficulty comprehending language or difficulty in remembering information. Either of these scenarios may impair the ability of the patient to make an informed decision regarding their care, reducing the potential for capacity.

As well as stroke patients, you may encounter other patients in practice who have brain injuries due to trauma or disease. The same principles of capacity assessment should apply to these patients, as comprehension and communication may be impaired. It is important not to make these assumptions, however, and to ensure that capacity is assessed in a formal manner in order to guide decision-making. Furthermore, capacity should be reassessed as the nature of the patient's condition changes or improves.

Confusion or drowsiness

Confusion and drowsiness are often seen in patients on the medical ward, and may be caused by multiple factors or conditions. Confusion in particular may be related to an infectious process (e.g. urinary tract infection) in elderly patients, may be the result of medication use, or may have developed following injury to the brain. Similarly, drowsiness may be caused by medication use (e.g. benzodiazepines) and brain injury. In both confused and drowsy patients, it is important to determine if the cause is immediately reversible to allow patients to make care decisions. For instance, patients who are given sedative medications excessively may have reduced capacity, but this is a consequence of failures in the care process - stopping the medication or reducing the dose may restore the capacity of the patient. Therefore, reversible causes should be noted and addressed to ensure that capacity can be formally assessed.

However, where reversible causes are not present, many patients who are confused or drowsy will be unlikely to understand the information presented to them in order to make a decision. Furthermore, they may find it difficult to communicate their decision in a meaningful manner.

Alcohol and substance misuse

A final group of patients where capacity may be impaired is patients who misuse alcohol or other substances, including drugs. The effects of chronic misuse of alcohol and other substances can be severe in terms of reducing memory, the ability to process information, perceptions of reality, and communicating with healthcare professionals. However, for some patients, cognition may be preserved - particularly following clearance of the substance from their system. Therefore, capacity should be assessed in an appropriate way, making sure that the chances for a patient to provide consent are optimised. This may involve waiting for the patient to become sober, or for drug effects to clear from their system, prior to making important clinical decisions. The delay in this process and the need for urgent medical intervention should be balanced, however, to make sure that such a delay would not risk the health or wellbeing of the patient (Edwards, 2009).

Another key point to note with patients with substance misuse problems is the potential for stigmatisation and reduced rights in the healthcare setting. These issues may arise if nurses assume that an alcoholic patient does not have capacity and proceed to treat them without appropriate consent, or against their wishes. As a nurse, it is important that you do not judge patients and assume things about their mental status; a complete assessment of capacity is needed to prevent discrimination and to preserve the rights of the most vulnerable groups.

Fluctuating consent

It is important to remember that some patients may not be able to provide consent to procedures or interventions at all times, and that some patients may only be able to provide consent in certain scenarios. Therefore, you should remember that just because consent was successfully obtained on one occasion, it does not mean that the patient has capacity to provide consent on other occasions. This is particularly true in the case of fluctuating consent.

Fluctuating capacity or consent describes situations where the patient may be able to give consent at some times, but not at others (Lennard, 2016). This is particularly important in patients with confusion caused by medications, mental health issues which are resolving, or substance/alcohol misuse. In all of these situations, the clinical state of the patient may change over time, leading to changes in how they are able to make decisions regarding their own care. It is important to consider two key points about fluctuating consent:

1. The assessment of capacity must be performed when the patient's ability to make decisions is optimised
2. In the presence of fluctuating capacity, re-assessment of the patient should be performed in a timely manner and clearly recorded.

In order to optimise the patient's potential to give capacity, the specific condition of the patient should be accurately recorded in the notes. Certain measures can be used to increase the opportunity for patients to understand, process or communicate information as described previously. This may include allocating extra time to the patient during the assessment, using communication aids, or providing assistance and additional resources to help with comprehension (Lennard, 2016).

Different conditions are more likely to be related to fluctuations in capacity, and these should prompt the need for nurses to consider re-assessment of capacity at a later time. When re-assessment is completed, it is important to base any clinical decisions on the most recent assessment of capacity. Further examinations may be performed over time to determine the mental capacity of the patient as their condition progresses or improves.

Assessment of capacity

As noted in the previous sections, the assessment process is of vital importance when determining the capacity of the patient and their ability to provide consent. In general, capacity assessments have traditionally been performed only when patients have disagreed with the decisions made by nursing staff or doctors on the ward. However, this view is changing, as patients with any condition that may impair capacity should be actively engaged in a capacity assessment, not only when they disagree with a medical course of action. This places the patient in a greater position of power within the therapeutic relationship and is consistent with the ethics of nursing practice.

Several main considerations should be noted when determining the capacity of a patient; each of these issues will be discussed sequentially.

Who should assess capacity?

The Mental Capacity Act (2005) does not specify who should assess capacity. However, any health professionals who intends to be actively involved in patent care should be suitably skilled and prepared to perform capacity assessments. This includes nurses, doctors and allied healthcare professionals in both hospital and community-based practice settings. Ultimately, it is the responsibility of the healthcare professional who is actively treating the patient to ensure that capacity has been assessed appropriately.

How should capacity be assessed?

There is no one 'correct' way to assess the mental capacity of a patient in all scenarios (Lamont et al., 2013). The level of capacity assessment is commonly related to the importance of the clinical decision. For instance, verbal consent when asking a patient if they are happy to be physically examined is considered appropriate due to the minimal chances of adverse outcomes and the non-invasive nature of the examination. However, for more complex procedures or interventions, more detailed discussion of the negative and positive effects of the intervention should be performed and written as well as obtaining verbal consent. An example of a more detailed need for capacity assessment may be in the context of a patient receiving a surgical intervention, where there may be large risks associated with the procedure itself.

Although different levels of capacity assessment may be sought in practice, the fundamental principles of the capacity assessment are consistent. The Mental Health Act (2005) recommends the use of a functional test of capacity, which focuses on the decision-making process itself and is derived from common law. The four main principles of capacity (understanding, retention, weighing up and communication) should be sought in a formal environment and recorded appropriately. When an individual patient fails one or more aspects of the test, then the entire test is considered a 'fail' and capacity is not present.

The capacity assessment may be considered within the context of the information provided by friends and close family members, although their views on patient management and decision-making should not be taken into consideration during the assessment process. The assessment must not be discriminatory in any way, and should not be based on the patient's age or appearance, or on assumptions about their condition or aspects of their behaviour.

How should capacity be documented and communicated?

The process of formal capacity assessment is very important from a professional, and potentially legal, perspective; therefore, accurate record keeping and documentation should be at the core of any assessment. This allows you to objectively record any discussions that took place and provides evidence of decisions that were made at the time.

Documentation of capacity assessments should be made in the patient notes and there are often specific forms to complete, depending on the local policy of the healthcare setting (Department of Health, 2009). Any capacity assessment should be formally completed and recorded in the notes and then repeated on a periodic basis where the condition of the patient has changed. Once the capacity assessment is complete, it is also important for nurses to communicate this to other members of staff who may be involved in the care of that patient, in order to reinforce the presence of the assessment notes. This can avoid confusion among staff members and variations in how people approach the patient or ask them about decision-making in care.

What are the implications of the capacity assessment?

The assessment of capacity is an important aspect of how decisions can be made either by the patient, or on behalf of the patient. There are two distinct outcomes of the capacity assessment: the patient has capacity, or the patient lacks capacity (Department of Health, 2009). When the patient has capacity, their decisions should be respected when engaging in decision-making or providing consent for a procedure or formal care process. As a nurse, you may discuss issues with patients and try to persuade them to undergo a procedure or test - particularly if the benefits to the patient are clear, from your perspective. However, you are not permitted to coerce or bully them into a decision.

When the patient is found to lack capacity, they are considered unable to make a definitive care decision. Regardless of the reason for failed assessment, there is a need to engage in a constructive decision-making process on behalf of the patient. The patient may have previously known preferences or attitudes towards specific procedures (prior to losing capacity) which may be taken into account when making decision on the behalf of the patient. However, in most cases, the clinical team should make a decision based on the fact that the patient is not able to provide any form of consent. These decisions should uphold the basic rights of patients and should be made with their best interests at heart, including upholding the principles of beneficence, non-maleficence, autonomy, respect and justice.

What if a patient refuses to be assessed?

There are some instances where a patient whose capacity in doubt may refuse to be involved in an assessment. This is a delicate situation and, as a nurse, you should be able to manage it sensitively and with respect to the patient. Most of the time, a sensible and sensitive discussion of why the assessment is needed may be enough to persuade the patient to agree. You should explain the consequences of a patient refusing to undergo a capacity assessment, including the fact that any decisions made may be questioned by medical or legal staff in the future. However, it is important to remember that if the patient refuses, then they cannot be forced to undergo a capacity assessment, and their wishes should be respected (Bingham, 2012).

Conclusion

In summary, this chapter has provided an overview of the importance of capacity and consent in nursing practice. Capacity is a key issue when exploring how patients are able to contribute to the decision-making process in a person-centred care environment. Patients who lack capacity cannot give their consent to a procedure or treatment course and therefore care must be provided in accordance with the best interests of the patient. Nurses need to use a unique set of skills, knowledge and judgment in order to ensure that patient rights, wellbeing and holistic aspects of care are achieved when capacity is lacking. The use of formal assessment processes, accurate documentation and ethical or legal processes is essential to ensuring that optimal care can be achieved.

Hands-on scenario

This section aims to illustrate how capacity assessment can be performed in practice and should serve as a useful scenario for discussion. Try to read the scenario and then make notes about how you would manage the problem, before reading the answer. Then compare your notes with the answer given and highlight any areas you may need to review, or do further reading on.

Scenario

Mrs H is a 79-year-old woman with a diagnosis of Alzheimer's disease who has presented to the hospital ward with malnutrition and pressure ulcers. The patient is typically cared for in the community by her daughter, her primary caregiver, but recently she has struggled to cope with her mother's worsening mental status. Mrs H has a history of type-2 diabetes and depression (10 years ago), but otherwise is well in herself. The patient is noticeably anxious and disorientated on the ward and seems uncertain of her surroundings. Her mental state examination on admission was good, and when you discuss care decisions with the patient she appears to have good short term memory, can comprehend information and communicates effectively.

However, over the following days Mrs H becomes less happy in herself and more hostile towards staff on the ward. She has started to refuse to take her medication and has not been eating well, worsening her malnourished state. Her aggressive behaviour is concerning some members of staff, and it is becoming increasingly difficult to turn her in her bed in order to treat her pressure ulcers and prevent others from occurring. You are concerned that the patient's behaviour may be reducing the effectiveness of care and may lead to poor outcomes for the patient and potential risks to members of staff.

You go to see Mrs H on the ward to explore the issues around her food intake and medication refusal. A nursing colleague tells you that the patient definitely does not have capacity as they are diagnosed with Alzheimer's disease and 'couldn't possibly make any decisions for herself'. The nurse suggests that the patient may need to receive a feeding tube, otherwise she is not likely to recover and may deteriorate. In addition, the nurse is concerned about the patient's behaviour and her own safety and suggests that the use of sedatives may help to calm the patient down and make them more likely to comply with nursing advice and interventions. The patient's daughter suggests that her mother is just overwhelmed by the ward environment and that taking a day or two to help her adjust will likely lead to her accepting medications and food again. The daughter also suggests that her mother 'usually puts up a fight' when being cared for at home, but encourages nurses to just do what they have to do to make her better.

When you see the patient, she is visibly anxious and disorientated, although she is not hostile towards you. When you ask her about her behaviour and discuss medication use with her, the patient understand the importance of the medications but expresses worry that nurses are intrusive and expresses that she just wants to be left alone. She states that she does not feel hungry and so is refusing food, and that the nurses are bullying her into eating. During the conversation, the patient appears to be forgetting some pieces of information and cannot remember the name of the hospital.

What would you do in this scenario to ensure the wellbeing of the patient?

Answer

This scenario raises a number of important issues with how capacity and consent should be assessed on the ward, and the implications of third parties' (colleagues or family members) main assumptions about capacity or metal status.

The most important thing to establish in this scenario is the level of mental impairment that the patient may be experiencing. Changes in behaviour on the hospital ward may be common in patients with dementia, due to progression of the disease or disorientation when removed from their standard care environment. However, this patient has other comorbidities which may impact on mental status, and the potential for infection should be noted. Therefore, a clinical analysis of the patient should help to decide if the patient is in a state of delirium or confusion and whether or not this may be related to physical health or medication use.

In this instance, it seems likely that the patient is having difficulty in adjusting to her new environment and communicating her needs or wishes with staff members. Due to the potential for aggressive behaviour and the difficulty in managing the patient, it is appropriate to perform a formal capacity assessment. It should not be assumed that capacity is diminished simply because the patient has a diagnosis of dementia. Indeed, when the patient was admitted, her behaviour was not problematic and memory or cognition did not appear to be affected adversely. Therefore, a formal assessment of capacity is fully justified. This should include establishing four key areas: the ability of the patient to understand information, retain information, weigh up the information, and then communicate their decision. Capacity should be assessed by expelling the need for nutritional support and the potential consequences of refusing food, as well as the necessity of the patient's medication. Capacity should be assessed in a peaceful environment for this patient, due to their disorientation, and the nurse should be calm and considerate that the patient may require long periods of time to consider her options or understand the advice or information given.

Based on the capacity assessment, a suitable management plan can be implemented for the patient. However, this assessment process also has another role, in that the nurse may be able to explore the patient's fears and concerns over hospital care and reassure the patient. Reassurance can lead to improved adherence to therapy, leading to a more effective care process. This is an essential step to take before the use of a feeding tube or forced medication regimens, including sedation. If the patient has capacity, then every effort should be made to cooperate with them and engage in an effective dialogue, rather than using forceful methods to manage the patient. This would be unethical and unprofessional, regardless of the opinion of colleagues or family members. Overall, your priority is ensuring that the patient is cared for in an ethical and professional manner. Your duty of care is to the patient, not to any family members, and therefore you need to do what you feel is best for the patient when capacity is not present and consent cannot be given.

Reference list

Bingham, S. L. (2012). Refusal of treatment and decision-making capacity. Nursing Ethics, 19(1), 167-172.

Department of Health (2005). Mental capacity act. London: Stationery Office.

Department of Health (2009). Reference guide to consent for examination or treatment (second edition). London: Stationery Office

Dhai, A., & Payne-James, J. (2013). Problems of capacity, consent and confidentiality. Best Practice & Research Clinical Obstetrics & Gynaecology, 27(1), 59-75.

Edwards, S. D. (2009). Nursing ethics: a principle-based approach. London: Palgrave Macmillan.

Lamont, S., Jeon, Y. H., & Chiarella, M. (2013). Assessing patient capacity to consent to treatment: An integrative review of instruments and tools. Journal of Clinical Nursing, 22(17-18), 2387-2403.

Lennard, C. (2016). Fluctuating capacity and impulsiveness in acquired brain injury: the dilemma of "unwise" decisions under the Mental Capacity Act. The Journal of Adult Protection, 18(4), 229-239.