Building capacity: the obligation on healthcare workers to build up a patient’s decision-making capacity

It is long established in Irish law that save in certain exceptions, such as emergency or necessity situations, any medical intervention must first involve obtaining the patient’s prior consent. Too often the consent process is reduced to simply obtaining a signature to a consent form, a dangerous practice for both patient and professional alike. Thankfully most health care professionals understand that obtaining consent goes beyond merely the patient consenting in writing (indeed, written consent, although almost always advisable, isn’t usually strictly necessary for consent to be given).

In most cases the question of consent is not in issue: the healthcare professional explains to the patient what intervention is proposed, including both health benefits and potential risks, the patient considers the information, afforded the opportunity to ask questions, and then indicates consent. This process often occurs swiftly, and in many straightforward cases, such as a nurse checking for blood pressure, often lasts seconds, with the patient often indicating their consent through gesture or by implication, such as raising their arm when asked for a blood pressure monitor to be applied.

Trickier questions arise when the intervention carries greater risk, such as elective surgery, where time is pressing or where the patient is vulnerable and potentially unable to understand the nature and quality of the decision to be made.

Too often in the past, and worryingly, often in the present, the healthcare professional moves swiftly to question the patient’s capacity to consent when concerns are raised over their ability to understand the decision to be made. This often arises where the patient is older, vulnerable, in ill health or suffering from a cognitive condition which potentially impacts on their ability to understand and decide.

In the last 30 years Irish law has moved away from a “the doctor knows best” approach to a more patient centric perspective. Irish law, following in the wake of the seminal case of “In re Ward of Court” (1995/96)(SC), has steadily shifted to the position whereby certain fundamental rights of the patient must always be foremost of the mind of the healthcare professional. A doctor, nurse or other specialist must always respect the patient’s right to autonomy, bodily integrity, personal dignity and their right to make their own decisions about their medical treatment.

Furthermore, the Assisted Decision-Making (Capacity) Act 2015 provides that all adults have a presumption of capacity in their favour. It is for others to rebut this presumption by proving otherwise.

Questioning capacity is potentially an affront to these rights. Casting doubts over a patient’s ability to understand and decide and moving swiftly to a capacity assessment risks running rough shod over these rights. Any decision to make a capacity assessment should always be seen as a last resort.

In the aftermath of “In re Ward of Court” and other cases, Irish law has taken the view that before any decision is made to assess a patient’s ability to decide, the healthcare professional must exhaust all other options to them. Has sufficient information been given to the patient? Has this communication been made in a form comprehensible to them?

The National Consent Policy 2022 (updated this year) speaks specifically about “building up the capacity” of the patient. If is not enough to question a patient’s capacity: the healthcare professional must first, ask themselves whether enough has been done to support the patient in their decision making.

Building support can take many forms and is usually patient specific. Nonetheless, there are many potential building blocks that should be considered:

1. Is the patient’s environment suitable for them to make the decision? Do they feel comfortable in making a decision in the public ward, where other patients may be eavesdropping? Improving privacy and intimacy of the consent process, such as drawing a curtain around the bed, can lead the patient to feeling more secure and more capable of making the decision.
2. Would the patient be better able to make a decision if they have a supporting person present? A patient always has the right to speak to others about any medical decision they need to make. Having a supporting person present, who might help in communication and offer reassurance and support, can make the patient feel more secure and comfortable, and better able to make their decision.
3. Is the patient capable of understanding the words spoken by the doctor or nurse? Failing to understand a communication does not mean that a patient lacks capacity. Like all professionals, health care workers can often fall into the habit of using overly complex language, or carelessly referencing acronyms and abbreviations which seem obvious to them but might be arcane to the lay person. The health care worker must learn to tailor their language to the specific needs of the patient. Speaking slowly, regularly pausing, explaining complex terms in simple, easily digestible parcels can greatly contribute to patient understanding. Sometimes words themselves will not suffice, so the health care worker should consider video, diagrams or the assistance of a speech and language therapist.
4. Patients’ ability to understand can fluctuate over time, and just because a patient is low and potentially incapable in the morning doesn’t mean that they won’t be in the afternoon. Where possible, the health care worker should adapt a “wait and see” approach, in the meantime considering whether there can be anything medically done to “build up” the patient. An elderly patient who arrives confused and disoriented on admission may settle and acclimatise after a short period. Similarly, a patient who potentially is unable to decide because they are in great pain may be in a greater space once pain killers have been administered.

These are just a few examples of how a patient’s capacity may be built up. The key take away is before any question can be raised as to capacity, the healthcare professional must remember the legal presumption of capacity in the patient’s favour and the fundamental human rights a patient is afforded. Questioning capacity is a challenge to these legal and human rights, and before it can even be considered, the healthcare professional must exhaust all other options reasonably available to them. Building up capacity is a fundamental element in this process and all those who propose to question a patient’s capacity must demonstrate that all reasonable and practicable steps to support the patient in the decision-making process have been explored.

To explore La Touche Training’s suite of courses in Healthcare, Consent & Capacity, Record Keeping and more, please see below:

• Best Practice in Complaint Handling for Healthcare Professionals
• Care of the Vulnerable Adult
• Consent, Capacity & the Assisted Decision-Making (Capacity) Act
• Effective Records, Reports and GDPR for Healthcare Professionals
• Medical, Social and Healthcare Professionals & the Law

Thank you to our very own Alex Nichol for writing this article.

Alex Nichol, Solicitor, BCL, LLM, Dip Corp.
La Touche Training: program developer and trainer.