5 Organisation and delivery of psychiatric services5.6 Human rights and mental health
5.6.1 Capacity and consent to treatment
3 min read
Written by Resident Doctor Committee · Published
New in the 2027 syllabus
The College added this topic for exams from January 2027.
What makes consent valid
Consent needs three things: a person able to make the decision, enough relevant information, and a voluntary choice.
Relevant information covers the purpose of the treatment, its likely benefits, the material risks, reasonable alternatives, and what may happen without treatment.
A signature only records a decision. It does not replace the discussion, and it does not show that the person has capacity.
Consent is ongoing. The person can change their mind. A new treatment, or a material change to the plan, needs a fresh discussion.
Assessing capacity
The framework below comes from the Mental Capacity Act 2005, which applies in England and Wales. Scotland and Northern Ireland have their own statutory frameworks. Do not carry one jurisdiction's test or powers over to another without checking.
Capacity is decision-specific and time-specific. A person may be able to decide about a blood test but unable, at that time, to decide about a complex operation.
Presume capacity. Give all practicable support before you conclude that capacity is absent. An unwise choice, a diagnosis or a low cognitive score does not, on its own, show that someone lacks capacity.
Failing any one ability is enough. A person is unable to decide if they cannot manage any one of the four abilities below, even with practicable support.
There must be a causal link. The inability to decide must result from an impairment or disturbance in the functioning of the mind or brain.
Ability | What to explore |
|---|---|
Understand | Can the person explain the relevant information in their own words? |
Retain | Can they hold on to it long enough to make this decision? |
Use or weigh | Can they think through the options and what each would mean for them? |
Communicate | Can they get their choice across by speech, writing, gestures or any other means? |
Supporting a decision
Communication support can include an interpreter, hearing aids, pictures, shorter explanations, and checking understanding in small steps.
Timing matters when pain, delirium, intoxication or distress is reversible. If recovery is likely, put off a non-urgent decision until then.
Voluntariness needs separate attention. A person may understand the treatment well and still face coercion from someone else.
When the person lacks capacity
Under the England and Wales framework, decisions are made in the person's best interests. These include the person's wishes, feelings, beliefs and values, as well as clinical benefit and harm.
Consult relevant carers and others with an interest in the person's welfare. Relatives do not automatically have authority to consent for an adult.
Check who has authority. A valid and applicable advance refusal, or an authorised attorney, may change who decides and what treatment can lawfully be given.
Choose the least restrictive option. Ask whether the purpose can be achieved in a way that restricts the person's rights less.
Mental health legislation can authorise some psychiatric treatment without consent, under defined safeguards. Being detained does not mean a person lacks capacity, and it gives no blanket authority for unrelated physical treatment.
Documentation
Record the decision in question, the information and support you gave, the person's responses, your conclusion and the reasons for it, and the plan for review.