Co-authored by Michael Walsh and Jemma Lee.
Contents
- A Adult 2.1
- B General rules 2.2
- General rule 1: A capacitous adult’s wishes must be respected 2.2
- General rule 2: There is only limited proxy of consent for others 2.3
- General rule 3: Power to treat in an incapacitous person’s best interests 2.4
- C Capacity 2.5
- Presumption of capacity 2.5
- Definition of capacity 2.6
- The specific decision 2.8
- Capacity is decision-specific: what must be considered is capacity to make the specific decision that has to be made 2.8
- The relevant information 2.9
- Key to any assessment of capacity is the identification of the information relevant to that specific decision 2.9
- Establishing capacity to consent, as opposed to obtaining ‘informed consent’ 2.10
- The ‘limbs’ of the functional test in section 3 2.11
- (a) Understanding the relevant information 2.11
- (b) Retaining the relevant information 2.12
- (c) Using and weighing the relevant information 2.13
- (d) Communicating the decision 2.15 Unwise or irrational decisions 2.16
- The assessment of capacity 2.17
- Key principles in determining capacity 2.17
- The steps to be taken to assess capacity 2.18
- Guidance on the assessment 2.19
- Recording capacity assessments 2.20
- The court makes the decision 2.21
- Temporary incapacity 2.22
- Anticipated loss of capacity – Guy’s and St Thomas’s NHS Foundation Trust v R 2.23
- D Consent 2.24
- The absolute nature of an adult’s consent 2.24
- Treatment must be lawful 2.25
- The obligation to treat in accordance with expressed wishes 2.26
- E Refusal 2.27
- Capacitous decisions to refuse treatment that may accelerate death 2.28
- Case of Ms C 2.29
- Obstetric treatment in the interests of a viable foetus no exception 2.30
- F Change of mind 2.31
- G Advance decisions 2.32
- General principle 2.32
- Advance decisions under the MCA 2.33
- Validity 2.34
- Applicability 2.35
- Advance decisions and MHA s 63 2.37
- Form 2.38
- Informed refusal? 2.39
- Knowledge 2.40
- Duration 2.41
- Records 2.42
- H Conclusion 2.43