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As a medical professional, you are charged with a profound responsibility. People come to you for your expertise, and authoritative advice, in a complex and expansive field.

However, in some circumstances an adult may choose to refuse your advice, and any medical treatment or medication you recommend, which is acceptable providing that:

  1. They understand what you have told them about the treatment or medicine
  2. They can make a reasonable and informed choice based on this information.

This ability to make informed decisions and deal with their own affairs is known as an individual’s ‘legal capacity’ and in this article, we’ll give you an overview – or a refresher – of that concept.

Capacity – the legal base

What we’re talking about here is not a principle of medicine or health, but a principle of law. And the base principle of law at the heart of determining legal capacity is this:

Adults are presumed to have capacity to make all decisions unless there is evidence to rebut that presumption.

While this is a relatively straightforward starting point, there are some important qualifications to consider, which we have detailed below.

Capacity is time specific

When we say that legal capacity is time specific, we mean that it’s impossible to say that a person will always have, or never have, legal capacity. They may lack capacity for a particular decision temporarily, and that period may last for a matter of minutes or a matter of years.

Capacity can also be increased over time, say if a condition affecting an individual’s judgement improves, with appropriate support.

Capacity is domain specific

A domain, in this context, refers to a field of subject matter – for example medicine or finance.

Consent to medical treatment is a lesser test than the capacity to manage complex financial decisions like investing in a diversified portfolio.

Capacity is decision specific

It’s important to consider that decisions within domains can be graded differently, as well.

The standard of mental competence required to be capable of making a particular decision depends upon the nature and complexity of the decision to be made.

More specifically, the more complex the decision, the higher the standard of mental competence required to make it.

Capacity, and the content of the decision itself, must be separated

A decision may end up looking “bad”, “ignorant” or “eccentric” with the benefit of hindsight, but this should be distinguished from the capacity of the person who made it.

Decisions – whether they are considered “good” or “bad” decisions in of themselves – are not indicative of an individual’s capacity.

Judging capacity

Capacity should never be judged solely on the basis of appearance, age, behavior, disability or impairment.

Why is capacity important for healthcare professionals?

Legal capacity is important because it’s intrinsically linked with informed consent.

What is “informed consent”?

Informed consent is a voluntary agreement to receive or refuse a particular clinical treatment based on the provision of adequate information about the intended treatment, including the material risks involved.

A patient must have capacity to give valid informed consent to medical treatment, medication or a procedure.

Whether an adult has capacity to make decisions about medical treatment will depend upon both the nature of the medical treatment, as well as the adult’s cognitive abilities.

What’s the test for determining a patient’s capacity?

A person is considered to be suffering from some impairment making them incapable of making a decision when he or she is unable to:

  1. Comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or
  2. Use and weigh the information as part of the process of making the decision

The person must be able to give informed consent.

As we mentioned earlier, the more serious the decision, the greater the capacity required

Is informed consent always necessary?

Informed consent may not be required from a patient in circumstances where the healthcare is:

  • Urgent
  • Without significant risk
  • Required to address imminent risk to the person’s life

Slater and Gordon offer a free legal education program to medical and allied health professionals on Legal Capacity and many other topics. If you’re interested in learning more about Legal Capacity or would like to book a session for your workplace, please contact us here.

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