3.2 Informed Consent & The Mental Capacity Act

3.2 Informed Consent & The Mental Capacity Act

Informed consent is a fundamental legal and ethical requirement in nursing care. Providing care or medical treatment without valid consent constitutes trespass to the person or battery under common law, and violates Article 8 of the European Convention on Human Rights (Right to respect for private and family life).

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Principles of Valid Consent

For consent to be legally valid in healthcare, three core criteria must be fulfilled simultaneously:

1. Voluntary: The decision must be made freely by the patient, without undue pressure, coercion, or manipulation by healthcare professionals, family members, or carers.
2. Informed: The patient must be given sufficient, understandable information regarding the proposed procedure, its intended benefits, potential risks, side effects, and available alternative options (including the choice to refuse treatment). Under Montgomery v Lanarkshire Health Board [2015], clinicians must disclose all material risks—defined as risks to which a reasonable person in the patient's position, or that specific patient, would attach significance.
3. Capacity: The patient must possess the cognitive capacity to understand, retain, weigh up, and communicate their decision at the time consent is requested.

Types of Consent

• Express Consent: Explicit verbal or written agreement. Required for invasive interventions, surgical operations, complex diagnostic tests, or administration of high-risk medications.
• Implied Consent: Inferred from a patient's voluntary actions or co-operation during non-invasive routine care (e.g., a patient holding out their arm when the nurse explains they are about to take a blood pressure reading).

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The Mental Capacity Act 2005 (MCA)

The Mental Capacity Act 2005 (MCA) provides the legal framework for England and Wales regarding decision-making for individuals aged 16 and over who lack the mental capacity to make specific decisions for themselves.

The 5 Statutory Principles of the MCA (Section 1)

1. Presumption of Capacity: Every adult must be assumed to have capacity unless established otherwise.
2. Supported Decision-Making: A person must not be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success (e.g., using pictorial aids, communication tools, or choosing optimal times of day).
3. Unwise Decisions: A person is not to be treated as lacking capacity merely because they make an unwise or eccentric decision that healthcare professionals disagree with.
4. Best Interests: Any act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be made in their best interests.
5. Least Restrictive Option: Before making a decision or intervention, consideration must be given to whether the objective can be achieved in a way that is less restrictive of the person's rights and freedom of action.

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The Two-Stage Functional Test of Capacity

Capacity is decision-specific and time-specific. A patient may have capacity to decide what to eat for breakfast but lack capacity to consent to complex cardiac surgery. Capacity can also fluctuate due to delirium, infection, or sedation.

To pass the Functional Test (Stage 2), the patient must be able to perform all four of the following cognitive steps:

1. Understand the information relevant to the decision (including benefits, risks, and alternatives).
2. Retain that information long enough to make the decision.
3. Weigh up / Use that information as part of the process of making the decision.
4. Communicate their decision (by speech, sign language, non-verbal gestures, or writing).

If a patient fails any one of these four steps due to the Stage 1 impairment, they legally lack capacity for that specific decision at that specific time.

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Best Interests & Decision-Making Safeguards

When a patient lacks capacity, decisions must be made under Section 4 of the MCA using the Best Interests Checklist:

• Consider whether the patient is likely to regain capacity in the near future.
• Encourage and permit the patient to participate in the decision as far as possible.
• Consult family, friends, carers, and multidisciplinary team members to ascertain the patient's past and present wishes, feelings, beliefs, and values.
• Respect valid Advance Decisions to Refuse Treatment (ADRT)—a legally binding written refusal of specific medical treatments made while the patient had capacity.

Independent Mental Capacity Advocates (IMCA)

An IMCA is a statutory safeguard. Healthcare professionals MUST instruct an IMCA when:

• A patient aged 16+ lacks capacity for a major decision.
• The decision involves serious medical treatment (e.g., chemotherapy, major surgery, turning off life support) OR a long-term accommodation change (hospital stay >28 days or care home move >8 weeks).
• The patient is unbefriended (has no family or friends willing and appropriate to be consulted).

Deprivation of Liberty Safeguards (DoLS) / Liberty Protection Safeguards (LPS)

Under Article 5 of the European Convention on Human Rights (Right to Liberty), no individual should be deprived of liberty unlawfully. Under the MCA, if a person lacking capacity is under continuous supervision and control and is not free to leave in a hospital or care home setting (the Acid Test from P v Cheshire West [2014]), a formal DoLS (or updated LPS) authorization must be granted by the Local Authority to make the care plan lawful.

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Consent in Minors: Gillick Competence & Fraser Guidelines

Young People Aged 16–17

Under Section 8 of the Family Law Reform Act 1969 and the MCA 2005, 16 and 17-year-olds are presumed to have capacity to consent to their own surgical, medical, or dental treatment. However, if a 16–17 year old refuses life-saving treatment, courts or parental authority may overrule the refusal under high court wardship.

Children Under 16: Gillick Competency

Under common law (Gillick v West Norfolk and Wisbech AHA [1985]), children under 16 do not automatically lack capacity. A child is Gillick competent if they demonstrate sufficient intelligence, maturity, and understanding to fully comprehend the proposed treatment, risks, and moral/social implications.

Fraser Guidelines

Specifically applied to doctors and nurses providing contraceptive, sexual health, or reproductive advice/treatment to young people under 16 without parental knowledge or consent. All 5 criteria must be satisfied:

1. The young person understands the nurse's advice.
2. The nurse cannot persuade the young person to inform their parents or allow the nurse to inform them.
3. The young person is very likely to begin or continue sexual intercourse with or without contraceptive treatment.
4. Unless the young person receives contraceptive treatment, their physical or mental health (or both) is likely to suffer.
5. The young person's best interests require the nurse to give contraceptive advice/treatment without parental consent.