Clinical capacity assessment

Sir: Dr Raymont (Psychiatric Bulletin, February 2002, 26, 201-204) is right to draw to our attention the complexities involved in the legal basis of our ministrations to the patient who may lack the capacity to give informed consent. We especially welcome discussion of the issue of belief and insight in this philosophical, legal and ethical morass, although we would have liked to see elaboration of terms like ‘full insight’ and ‘greater level of capacity’. However, a particular suggestion made us wince.

Dr Raymont answers her own question, ‘So how can we proceed currently with any physical treatment of those who lack capacity?’ with ‘Certainly a full psychiatric assessment should be made initially’ — apparently before life-saving treatment. This presumably applies to many with major stroke or an acute cardiac event, a large number of the 30-60% admitted to medical wards with dementia or delirium (Ramsay et al, 1991; Treloar & Macdonald, 1997), a high proportion of all those in nursing homes (Macdonald et al, 2002) and every single unconscious patient. If by ‘psychiatric assessment’ she includes presenting complaint, history of presenting complaint, collateral history, and so on by mental health professionals, we wonder where all these professionals will come from?

Apart from this practical problem, we object on principle to the growing tendency for physicians and surgeons to involve psychiatrists in judgements about capacity to consent. Under current UK law (as opposed to some of the US jurisdictions in which the MacArthur Competence Assessment Tool for Treatment (MacCAT-T) (Appelbaum & Grisso, 1998) was developed) it is not necessary to diagnose the cause of any impaired capacity in order to make the judgement that it is impaired. All professionals must surely be able to make such judgements in relation to each decision, great or small, confronting their patient if they are not to be constantly exposed to accusations of battery on the one hand or neglect of duty of care on the other.

Each trust must ensure that its doctors are competent to assess capacity and have policies in place for treatment when capacity is lacking. It is the responsibility of every treating physician to gain the informed consent for the treatment they are delivering and to take appropriate measures if they do not believe the person to have that capacity. These include timely interventions to save life and, when more leisurely interventions are allowed, involving the relatives, consulting colleagues (almost never a psychiatrist) and other measures, in accord with the Bolam standard (Bolam v. Friern, 1957).