Capacity and consent might be mentioned in your Med School interview, because it’s an important issue in Medicine. While you tackle your interview prep, take the time to thoroughly understand this hot topic and consider how you can apply the four pillars of ethics when thinking about issues of consent or capacity.

What is Capacity?

Capacity is the ability to give consent. It relies on the patient being able to understand the risks and benefits and make a decision.

Why is Capacity Important?

Capacity is important because you need to know if a person can give consent.

How Do You Assess Capacity?

Patients aged 18 or over are assumed to have capacity unless this is proven otherwise. The Mental Capacity Act 2005 governs this.

In order to have capacity, a person must:

  • Be able to understand the information related to the decision
  • Be able to retain the information for long enough to make a decision
  • Be able to weigh up or use the information to make a decision
  • Be able to communicate the decision in any way at all

What If Someone Lacks Capacity?

If someone lacks capacity, it means they don’t meet the points above. It may be permanent, or temporary (for example if they’re on medication or under the influence of substances).

In this situation, the Doctor is expected to act in the best interest of the patient.

Someone who has a permanent lack of capacity may have a medical proxy, who’s able to make decisions for them, or they may have an advanced directive in place.


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Valid Consent

Consent is valid when all three of these criteria are met:

  • It’s voluntary. Deciding to consent or not consent is made by a patient and is not influenced by pressures of relatives, friends or healthcare professionals.
  • It’s informed. A patient is given all the information about what the treatment in question involves. This will include the benefits, the potential risks and what would happen if the treatment didn’t go ahead.
  • The patient has capacity. This means that the patient has the ability to give consent is important.

Consent is given in two main ways:

  • Verbally. For example, “I am happy to have a blood test.”
  • Written.  For example, a patient signs a surgery consent form.

Children And Consent

The Children Act 2004 (a reinforcement of TCA, 1989) states that adulthood is reached after the 18th birthday. This means 18-year olds are to be treated like all other adults that are able to consent for themselves unless there are exceptional circumstances.

16 and 17-year-olds are presumed to be able to make decisions about their health independently from their parents and are usually able to consent for themselves.

It’s typically under 16s that must be assessed for competency to consent before being able to agree to an intervention. This is known as Gillick competency.

If a child is unable to demonstrate this competence, then the following can consent on their behalf:

  • The child’s mother or father
  • Legally appointed guardian
  • Local authority designated to care for the child
  • A person with a residence order concerning the child
  • A local authority/person with an emergency protection order for the child.

What Is The Practical Application Of Patient Consent?

Here are some examples of when patient consent applies:

  • Asking a patient to hold their hand out for a blood test.
  • Inquiring whether a patient’s embryos can be stored for fertility treatments.
  • Checking whether a patient is ready to have their x-ray taken.

In some instances, treatment may proceed without a patient’s consent in situations such as:

  • Emergency life-saving treatment in which a patient is unable to give consent because they’re incapacitated (e.g. such as being unconscious).
  • Additional emergency procedures during an operation.
  • The patient has a severe mental health condition (such as dementia or schizophrenia) and is incapable to give consent about mental health treatment.
  • Under the Mental Health Act 1983, if there is a need for hospitalisation for a severe mental health condition but a competent patient has self-harmed and attempted suicide and refuses treatment, their relatives or social workers must make an application to forcibly keep the patient in a hospital. Two Doctors will assess the patient’s condition.
  • If there is a wider risk to public health if a patient goes untreated, such as rabies or tuberculosis.
  • When someone is extremely ill, unhygienic and living in poor conditions they can be taken in for treatment. This is in line with the National Assistance Act 1948.

Applying The Four Pillars of Ethics to Consent

Consent is a difficult concept, particularly when it comes to children and young people. You should apply the four pillars of ethics to any dilemmas about consent.

When it comes to autonomy, you should think about:

  • If a child can make a decision about their health, their decision should be respected
  • Only those able to make informed decisions that promote health and avoid harm should have the privilege of autonomy

This means that a child should not be able to consent to a test or treatment if they cannot understand the intervention and its accompanying risks and benefits.

For beneficence, think about:

  • If a child is able to understand the treatment and decide that it is in their best interests, they should be deemed competent to consent
  • Children under 16 may lack the cognition to understand the implications of certain tests or treatments and their decision may not be rational and in their true best interests

This is particularly important when children refuse treatment. If refusing treatment may result in serious mental or physical harm, the decision may be overruled by a parent or a court of law, to ensure the best interests of the child are prioritised over autonomy.

When it comes to non-maleficence, consider:

  • If preventing a child from receiving a treatment that they are willing to consent for causes them harm, accepting their consent and giving them treatment will avoid this harm
  • If a child is engaging in potentially dangerous or illegal behaviour, it could be argued that their parents should be informed

It is important to consider whether the child is put at risk from treatment or a lack of treatment.

For justice, make sure to think about:

  • The Gillick test was created to ascertain if a child under 16 was capable of making their own decisions
  • With legal guidelines promoting the autonomy of children if they are deemed competent, there are no specific legal arguments against the autonomy of children – it is down to clinical judgements and avoidance of harm

The test states that if a child can understand and comprehend a treatment, its implications, including the risks and benefits, and alternative options, they have the ability to consent.

To get a better understanding of applying key pillar of ethics to consent and young children, it is worth looking into the recent Keria Bell case.

Consent Scenario

Below is a consent scenario to consider:

A 15-year-old girl comes in alone and tells her GP that she is sexually active. She also states that she would like to start taking contraception. 

When it comes to capacity and consent, you should consider:

  • If you refuse to supply contraception without parental consent, the child may suffer emotional harm from revealing her sexual activity to her parents
  • On the other hand, she may decide not to tell her parents and continue the sexual activity without contraception. This would put her at risk of unwanted pregnancy and sexually transmitted infections.

However, consider if the girl was engaging in sexual activity with an inappropriate adult, the situation would change. By providing treatment, you may be allowing the behaviour to continue and remain a secret from the parents, both of which would put the child at risk of harm. In this instance, Gillick competence is very important and will help the GP understand whether sexual abuse is taking place, whether the child’s safety is at risk and whether the child is able to consent to sexual activity.

For the specific case of contraception in under 16s, it may be valuable to familiarise yourself with the Fraser guidelines.

Consent Questions

It is possible you will encounter questions about capacity or consent in your interview. Some topics that could arise are:

  • Are there any scenarios in which consent is not required? If so, can you give an example?
  • A patient admits they are using illegal substances. Can you disclose this to the local authorities without patient consent?

To find out the answer to these questions, check out our ethics question and answer guide.

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