To be deemed capable of giving ‘informed consent’ the person:

  • Must fully understand what is involved in relation to investigations and treatment.
  • Must be made aware of potential adverse effects as well as potential benefits of treatment.
  • Must be able to weigh up the pros and cons of alternative options for treatment/no treatment.

Points to consider prior to assessing capacity to consent:

  • The AWI Act recognises that a person may have capacity to make decisions about some aspects of their care and treatment but not others e.g. they may have capacity to consent to medical investigations but not have capacity to consent to treatment.
  • A person’s capacity may be diminished on a temporary basis under some circumstances e.g. delirium (for example, in the context of infection), post traumatic amnesia. Therefore, a person’s capacity to make decisions about their care and treatment should be reviewed.
  • The person’s past and present views should be considered. They may be able to express these verbally, in writing or provided by close relatives or legal proxy.

When carrying out the assessment of capacity it is important to ensure the person is supported to understand the relevant information in order to make an informed decision:

  • Use simple language to explain the treatment/procedure and why it is being proposed.
  • Explain the benefits, risks and alternatives in order to support decision making.
  • Explain the potential consequences of not receiving the proposed treatment/procedure.
  • All practicable steps must be taken to facilitate understanding. How information is presented can help the person to understand and make informed decisions.
  • Check understanding and retention of important information following the interview and again at a later date.
  • To support assessment of capacity, consider carrying out a more detailed cognitive and/or communication assessment (Refer to Neuropsychology and/or Speech and Language Therapy).
  • If there is still uncertainty about the person’s capacity to consent, consider getting a second medical opinion.
  • All discussions and assessment outcomes should be recorded in medical records.

 

Having taken all practical steps to enable the person to make the decision in question, they are required to communicate it.  If the ability to use spoken language is impaired, use of Alternative and Augmentative Communication support may be required.

 

Further guidance on assessment of capacity to consent can be found at:

Assessing Capacity: Consent to Treatment

 

If the person is assessed as lacking capacity to consent, then the doctor should complete the appropriate AWI certificate i.e. Section 47 certificate.  This states that the person is ‘incapable’ of giving consent to the intervention/treatment in question and outlines the reason why the person lacks capacity to make these decisions.

 

Section 47: Authority to Treat under Adults with Incapacity (Scotland) Act 2000