1.5 Mental Capacity and Consent

1. Capacity and Consent

Practitioners may, at various times, need to assess whether family members they are working with have the mental capacity to give informed consent and / or to make informed decisions.

This may be in relation to children and young people or adults such as their parents / carers. Different considerations apply depending on whether the person is aged 16 or over or is under 16. The Mental Capacity Act 2005 (MCA) and its Code of Practice only apply to people aged 16 or over.

The MCA provides a framework to protect and restore power to those who may lack, or have reduced, mental capacity to make particular decisions at particular times.

Whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks mental capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. This reflects the fact that people may lack mental capacity to make some decisions for themselves but will have mental capacity to make other decisions. For example, they may have mental capacity to make small decisions about everyday issues such as what to wear or what to eat but lack mental capacity to make more complex decisions.

It also reflects the fact that a person who lacks mental capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. This may be because they have an illness or condition that means their mental capacity changes. Alternatively, it may be because at the time the decision needs to be made, they are unconscious or barely conscious whether due to an accident or being under anaesthetic or their ability to make a decision may be affected by the influence of alcohol or drugs.

Finally, it reflects the fact that while some people may always lack mental capacity to make some types of decisions – for example, due to a condition or severe learning disability that has affected them from birth – others may learn new skills that enable them to gain capacity and make decisions for themselves (see Mental Capacity Act 2005 Code of Practice: p3).

Where people lack mental capacity to make decisions (whether on a temporary or permanent basis), this means that they are not able to give an informed consent. The requirement is for them to be capable of giving informed consent to the particular decision at the particular time. As their mental capacity can fluctuate, so can their ability to give informed consent. At any particular time they may be able to give informed consent to some decisions but not to others.

2. Mental Capacity of People Aged 16 Years or Over

These provisions apply to children aged 16 or over and to adults such as parents or carers.

See also Learning Difficulties in Parents and Impact of Adults with Mental Illness on Children they Care For chapter.

2.1 Assessing capacity

Assessment may need to be made (on the balance of probabilities, which means – from the evidence presented – it is more likely than not), as to whether the person lacks capacity to make a particular decision, at the time it needs to be made.

2.1.1 Two Stage Test

To help assess if a person lacks mental capacity, the MCA sets out a two stage test:

Stage 1: The functional test

This test looks at whether the person is unable to make a specific decision when they need to.

Stage 2: The diagnostic test

This test looks at whether the person has an impairment of, or a disturbance in the functioning of, their mind or brain.

Examples include:

• conditions associated with some types of mental illness;
• dementia;
• significant learning disabilities;
• the long-term effects of brain damage;
• physical or medical conditions that cause confusion, drowsiness or loss of consciousness;
• delirium;
• concussion following a head injury; and
• symptoms of alcohol or drug use.

It is important to determine whether the inability to make the decision is because of this impairment. This is known as the ‘causative nexus’ (PC and NC v City of York Council [2013] EWCA Civ 478). Only where it can be reasonably said that the person cannot make the decision because of the impairment of their mind, can it be said that they lack capacity to make the decision.

If a person does not have such an impairment or disturbance of the mind or brain, they will not lack mental capacity under the MCA.

Inability to make a decision

A person is considered unable to make a decision if they cannot:

1. understand information about the decision to be made (‘relevant information’);
2. retain that information in their mind;
3. use or weigh that information as part of the decision making process; or
4. communicate their decision (by talking, using sign language or any other means).

If there is evidence that the person cannot do one of these things, it must be due to their specific impairment.

2.2 Assisting decision making

A person should not be treated as unable to make a decision or give consent unless all practicable steps to help them to do so have been taken without success. This might include, for instance, communicating with them or presenting information to them in a different way which might be easier for them to understand.

The Mental Capacity Act 2005 Code of Practice (Office of the Public Guardian) and Quality Standard QS 194: Decision Making and Mental Capacity (NICE) provide further information on supporting decision-making for people aged 16 and over.

Quality Standard QS 194 (NICE) covers decision making in people aged 16 and over, using health and social care services who may lack mental capacity to make their own decisions (now or in the future). It aims to support implementation of the aims and principles of the MCA and relevant Codes of Practice. It is not a substitute for these. It sets out the following Quality Statements:

• Statement 1 People aged 16 and over who may lack capacity to make decisions are supported with decision making in a way that reflects their individual circumstances and meets their particular needs;
• Statement 2 People aged 16 and over at risk of losing capacity to make decisions, and those with fluctuating capacity, are given the opportunity to discuss advance care planning at each health and social care review;
• Statement 3 People aged 16 and over who are assessed as lacking capacity to make a particular decision at the time that decision needs to be made, have a clear record of the reasons why they lack capacity and the practicable steps taken to support them;
• Statement 4 People aged 16 and over who lack capacity to make a particular decision at the time that decision needs to be made have their wishes, feelings, values and beliefs accounted for in best interests decisions.

3. Mental Capacity of Children Aged Under 16 Years

The MCA does not apply to children under 16 years of age. Instead, practitioners need to assess whether or not a child or young person is ‘Gillick competent’ to make decisions and / or give consent (named after the case of Gillick -v- West Norfolk and Wisbech Area Health Authority 1986).

Where a child is assessed as being Gillick competent to make the particular decision or give the particular consent at the relevant time, they are able to give a valid consent or make a valid decision without the requirement for additional consent by a person with parental responsibility.

3.1 Assessing Gillick competence

There is no set of defined questions to assess Gillick competency. Practitioners need to consider several things when assessing a child’s capacity to consent, including:

• the child’s age and maturity;
• their understanding of the issue and what it involves – including advantages, disadvantages and potential long-term impact;
• their understanding of the risks, implications and consequences that may arise from their decision;
• how well they understand any advice or information they have been given;
• their understanding of any alternative options, if available;
• their ability to explain a rationale around their reasoning and decision making.

Consent is not valid if a young person is being pressured or influenced by someone else.

Children’s capacity to consent may be affected by different factors, for example stress, mental health conditions and the complexities of the decision they are making. The same child may be considered Gillick competent to make one decision but not competent to make a different decision.