Capacity and consent

Brayne & Carr: Law for Social Workers: 10eChapter 5

Difficult questions

• When is a service user capable of consenting to intervention?

• If someone cannot consent, when is it lawful to intervene?

Mrs Gillick’s case

• Who consents to medical treatment for a child?

• The issue– Doctor’s autonomy to decide, or– Child’s autonomy to decide, or– Parent’s right to decide

• The decision– The sliding scale from parental responsibility to

Gillick competence

Risk of criminal and civil liability

• Services provided without explicit or implicit consent or other legal authority risk – Criminal charge of assault– Tort of conversion, trespass to person or property

Range of examples of authority where no consent

• Care, specific issues orders etc Children Act• Detention under MHA• Police powers to arrest, enter property, detain

under PACE• Common law powers to avert danger and

provide medical treatment• Mental Capacity Act• A prison sentence

Mental Capacity Act 2005 (1)

• Assume capacity unless evidence of incapacity

• Take steps to help make decisions • Allow people to make daft decisions• Take into account type of decision at stake,

infringement of liberty, risk etc• Do not judge on basis of age or other

characteristics

Mental Capacity Act 2005 (2)

• Capacity requires understanding, retaining, and weighing up information

• Lack of capacity must be to do with impairment in mind or brain affecting that decision at that time

• Intervention in good faith for benefit of person who appears to lack capacity lawful

Don’t forget ethical dimension

• Human Rights article 8 – respect for privacy, which includes respect for the individual’s personal integrity

• Social work ethical codes e.g. BASW “Social work is committed to five basic values” including: – Human dignity and worth – Integrity

Nature of consent

• Capacity – which includes age and state of mind

• Information – consent which is not informed is not consent

• Freely given

Examples from the cases

• Bolton Hospitals Trust v O (2002)• Re L (1998)• Ms B v An NHS Hospital (2002)• Re R (1991)• Re W (1993) • NHS Trust v T (2004)• Re B (1991)• Re F (2001)

Other ways of achieving a voice

• Advance directions and powers of attorney• Advocacy services• Proxies• The official solicitor• Children’s guardian