Treating non-competent patients

England's new act imposes new obligations but also makes things clearer

One issue that faces every clinician is assessing a patient's competence and thus the ability to give consent, whether for a blood test or major surgery. Doctors need an approach for cases where competence is in doubt. The Mental Capacity Act 2005, which comes into force in April 2007 in England and Wales, not only provides such an approach but also sets out clear legal requirements for both assessing competence (referred to as “capacity” in the act) and treating incompetent patients.1

Generally the act applies to people aged 18 and above but may apply to 16 and 17 year olds whose incompetence is likely to persist into adulthood. It applies to individual decisions, because an individual may lack capacity to make some sorts of decisions (such as consenting to complex surgery) but be competent to make others (such as consenting to ultrasound examination).

Under the act a person lacks capacity only if there is an impairment of, or a disturbance in, the functioning of the mind or brain, which can be either temporary (such …