Intended for healthcare professionals


When mental capacity becomes an issue in medical practice

BMJ 2016; 352 doi: (Published 20 January 2016) Cite this as: BMJ 2016;352:i222
  1. Chris Danbury, visiting fellow in health law
  1. 1University of Reading School of Law, Reading RG6 7BY, UK
  1. c.danbury{at}

Consider mediation before going to court

The courts developed the concept of mental capacity over a long period before it was codified in the Mental Capacity Act 2005 (England and Wales). It relates to a person’s ability to make a decision. In medicine, that decision is usually whether to consent, or refuse to consent, to a treatment.

The act starts by saying: “A person must be assumed to have capacity unless it is established that he lacks capacity.” It then sets out the necessary tests to establish capacity. A person must be able to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making the decision, or to communicate his decision (whether by talking, using sign language, or any other means).

The latest edition of the BMA/Law Society’s Assessment of Mental …

View Full Text

Log in

Log in through your institution


* For online subscription