Q4) Answer: A
An adult - someone 18 years old or above - is presumed to have capacity until it's demonstrated otherwise. A child's capacity develops over time as they become more mature, and each case involving them needs to be decided on its merits. But a two-year old child is not going to be able to understand the relevant information about this particular decision, and you'll need to get authority to proceed from a parent.
As above in question two, a patient's capacity to make a decision may fluctuate. You can't assume a patient lacks capacity now just because they were incapable the last time you assessed them.
A Jehovah's Witness might well decide to refuse a blood transfusion because of their faith, but as the GMC's guidance on consent makes clear, you mustn't assume a patient lacks capacity based on their beliefs or the fact that they make a decision you disagree with.
Q5) Answer: B
As in question four, an adult patient is assumed to have capacity until we can demonstrate otherwise. This is judged against the usual civil legal standard of 'the balance of probabilities', i.e. it's more likely than not to be the case.
A capable patient can make decisions that go against medical advice, so simply showing that their decision is apparently unreasonable to us doesn't mean they have has lost capacity.
Q1) Which one of these is directly relevant to a capacity assessment?
- The mini mental state evaluation (MMSE) score.
- Whether the patient is detained under the Mental Health Act.
- The patient's ability to communicate.
Q2) Capacity is specific to:
- the time
- the decision
- both of the above.
Q3) When assessing capacity of a patient you always need to:
- involve a psychiatrist
- provide the patient with every reasonable assistance to maximise their ability to make decisions for themselves
- be sure that they understand every detail of the proposed intervention.
Q4) The following patients can safely be assumed to lack capacity for consent to have a life-saving blood transfusion:
- a 2-year old child
- a patient who was assessed as lacking capacity yesterday
- a Jehovah's Witness.
Q5) An adult patient lacks capacity to refuse a life sustaining treatment. Your notes should:
- demonstrate why you feel beyond reasonable doubt that the patient lacks capacity
- show why you believe it's more likely than not that the patient lacks capacity
- show why the patient's decision is unreasonable on medical grounds.
Q1) Answer: C
The legal assessment of capacity depends on whether the patient can do all of the following:
- understand the information relevant to the decision
- retain that information long enough to…
- weigh it up and reach a decision
- communicate their decision.
The MMSE score doesn't really assess the information relevant to a specific decision that a patient has to make, and therefore it's not directly relevant to a capacity assessment.
A patient could be detained under the Mental Health Act and still have capacity to make a specific decision relating to their care. There have been some very well publicised court cases where patients with significant mental illnesses have been determined as having capacity.
Q2) Answer: C
An assessment of capacity is specific to the time and to the issue about which the patient is being asked to decide.
A patient might well have capacity one moment, but could lose it in a matter of minutes, if they were sedated, for example, or had a stroke. Equally, a patient who lacks capacity because they're drunk might well have capacity when they sober up.
A patient who has limited or borderline capacity, such as a child, might be able to make simple decisions like whether to allow a doctor to examine them, but not more complex ones like whether to have an organ transplant. Specific factors can also come into play and affect capacity for certain decisions. In one well known case, a patient known as MB needed an urgent caesarean section to deliver her baby, but because of her phobia of needles she panicked and withdrew consent at the last minute. The court determined that her fear resulted in her losing capacity at the crucial time.
Q3) Answer: B
All doctors should be able to make basic capacity assessments. But in difficult cases, like where there's doubt or if the decision is a particularly significant one, it's often helpful to have a second opinion from a relevant clinician such as a psychiatrist. Ultimately, if there's any doubt or disagreement about the patient's capacity, a decision from a court may be needed.
Patients should be helped to make decisions for themselves. This might mean you need to spend longer with them, provide written information or involve a translator or speech and language therapist to help with communication. Patients' capacity can fluctuate, and it may be possible to defer the decision until they're capable.
As one notable case shows - Heart of England NHS Foundation Trust v JB  EWHC 342 (COP) - patients also don't always need to be able to understand and retain every last detail of the information about a decision.
Dr Sally Old
Dr Sally Old
Sally was a consultant clinical oncologist before joining the MDU in 2006. She trained in hospital medicine before specialising in cancer treatment, including radiotherapy. With a main interest in thoracic oncology, including lung cancer and mesothelioma, her clinical role involved producing reports for solicitors and the local Coroners. This sparked her desire to know more about medico-legal medicine. Sally has an LLM in Medical Law and Ethics from the University of Kent. She is a Member of the Faculty of Forensic and Legal Medicine and sits on its Revalidation Committee.
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