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Dr Diane Mullins, RCSI Tutor in Psychiatry, St Itas Hospital, Portrane

Assessment and capacity to consent in a patient undergoing surgery

Mr Davis is a 50-year old man under the care of a general surgical team in your
hospital. He was admitted 2 days ago with malaise & vomiting, for investigation.
Examination & investigations suggest bowel obstruction. He is refusing to sign the
consent form for exploratory surgery. The surgical team has asked for psychiatry to
assess his capacity to consent or withhold consent to the operation

Capacity is a legal concept meaning the ability to enter into valid contracts.
It is gained on adulthood and is presumed to be present throughout the lifespan
unless permanently or temporarily lost
To treat a capable patient without consent would be an assault

Capacity criteria: to have capacity the patient must be able to-

1. Understand the issue at hand
2. Retain information long enough to form judgement
3. Believe the medical opinion is correct and genuine and accept it applies to
4. Use the information to make a decision
5. Communicate their comprehension and view

If any of the above criteria (1)-(5) is not presentcapacity is absent

Incapacity principles
1. We must assume capacity to be present unless demonstrably absent
2. Respect the right to be foolish if capacity is present
3. Restore/improve capacity before acting against the patients wishes (except in
an emergency)
4. Act in the best interest of the patient (not family/hospitals interest)
5. Take the least restrictive course of action consistent with patients best interest

The capacity assessment should be

1. Explained to the patient
2. Discussed with the treating team
3. Documented in the clinical notes

Assessment of capacity to consent involves assessing:

1. The patients understanding of the overall problem he has
2. The patients understanding of the nature of the proposed procedure
3. The patients understanding of the purpose of the procedure
4. The patients understanding of the risks of the procedure
5. The patients understanding of the risks of not having the procedure
6. Does the patient believe the above information
7. Is the patient able to weigh the information in order to come to a decision

If the patient lacks capacity, the treatment can only be given taking into account
the best interests of the patient. The Mental Health Act 2001 cannot be used if the
patient does not have the capacity to consent to surgery / other treatment