Consent and Capacity

Patients should make informed decisions about their treatment. This means they need to be given information in a way that allows them to adequately understand the purpose, benefits and risks of treatment to make a decision. 

Patients are allowed to make unwise decisions provided they fully understand the decision and have capacity. Making an unwise decision does not mean they lack capacity.

It is worth noting that you do not have to provide treatment requested by a patient if you do not think it is appropriate (e.g., requesting opiate medications or unwarranted surgery). They have the right to a second opinion.

TOM TIP: Your ability to help patients make informed decisions is tested with every OSCE explanation station. The key to scoring the highest marks is to tailor your explanation to the individual patient’s current understanding, ideas, concerns and expectations. This means spending most of the time listening and asking questions, rather than telling the patient information. Check what the patient currently knows and then fill in the gaps using small chunks of information. Offer the patient options with an explanation of each option (even if the choice seems obvious), rather than telling them what to do. This includes offering the option to do nothing, even if this results in poor outcomes. OSCE explanation stations are often set up with a particular patient agenda, such as wanting to avoid a particular treatment, and if you don’t ask you won’t identify this and may do poorly on that station.



The legal framework around capacity and making decisions for patients that lack capacity is the Mental Capacity Act (2005).

All adults are assumed to have capacity. Where there is a doubt about a patient’s capacity, it is assessed based on each individual decision. For example, a patient with cognitive impairment may be able to make a decision to consent to someone taking their blood, but not to consent to major surgery with potentially-life threatening risks. 

A person’s capacity to make a decision may fluctuate, meaning on a “good day” they can make a decision. The decision should be delayed if safe to do so and they are likely to be able to make it for themselves at a later time.

There are four criteria a patient needs to meet to demonstrate capacity to make a decision:

  • Understand the decision
  • Retain the information long enough to make the decision 
  • Weigh up the pros and cons
  • Communicate their decision


TOM TIP: It is worth committing these four criteria for capacity to memory. I have lost count of the number of times I have been asked for or needed to apply these criteria. They also frequently feature in exam questions, both in written exams and OSCEs.


Treatment decisions for patients that lack capacity are taken in their best interest, taking into account their individual wishes and values. Significant decisions can be made at a best interest meeting, with a multidisciplinary group that includes professions (e.g., doctors, nurses and social workers), the patient’s next of kin and other relevant people, such as close friends or family members.

Lasting power of attorney (LPA) is when a person legally nominates a person of their choice to make decisions on their behalf if they lack mental capacity. LPA only comes into effect if the patient lacks the capacity to decide for themselves. It does not give the person with LPA control over a decision if they can still make that decision themselves.

Deprivation of liberty safeguards (DoLS) involves an application made by a hospital or care home for patients who lack capacity to allow them to provide care and treatment. Whilst in hospital, or a care home, the patient is under control and is not able to leave. This means they are “deprived of their liberty” and require a legal framework to protect them.


Gaining Consent

Gaining consent involves the full process of providing information to allow the patient to make an informed decision. How formal this process is varies depending on the intervention. For example, to examine a patient’s hands, informed consent is simply implied by them allowing you to inspect their hands. Starting a patient on a medication generally only requires an explanation and verbal consent. Gaining consent for surgery is a much more rigorous process and requires a signed consent form.

The person that gains consent for a surgical procedure, should be involved with that procedure and have a sufficient understanding of it, including the intended benefits, risks and the possible complications. These should be explained to the patient in a way they can understand, so that they can make an informed decision. The alternative options should also be discussed.

A copy of the consent form is given to the patient and another is filed in the notes. Patients can withdraw their consent at any time prior to the procedure, provided they retain capacity to change their mind. 


Consent Forms

There are four different consent forms that can be used in different scenarios that you may come across in the NHS:

  • Consent Form 1: Patient consenting to a procedure
  • Consent Form 2: Parental consent on behalf of a child
  • Consent Form 3: Where the patient won’t have their consciousness impaired (e.g., a breast biopsy)
  • Consent Form 4: Where the patient lacks capacity


Last updated May 2021

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