Introduction – Our Professional Responsibility

Understanding the subtle differences between the several key concepts around decision-making when considering any treatment or care options offered to a person is essential. This becomes more important when supporting a person with an intellectual disability, for example, so that their autonomy is respected and, wherever possible, they are making an informed decision.

In this post, we’ll examine the differences between the terms Capacity, Consent, Assent, Dissent, and Refusal and how they affect treatment options and care practices. We will also identify some tools and tips for assessing these concepts.

Key Differences

Capacity

Capacity refers to a person’s ability to make decisions about their own care and treatment. It involves understanding the information relevant to the decision, retaining that information, using or weighing that information as part of the decision-making process, and communicating their decision. In England and Wales, for example, the Mental Capacity Act 2005 provides the legal framework for assessing capacity.

Consent

Consent is the agreement to receive a specific treatment or participate in a procedure after being fully informed of the risks, benefits, and alternatives. It must be given voluntarily, without any form of coercion. The General Medical Council (GMC) provides guidance on obtaining informed consent in healthcare. Equally, most professional bodies worldwide establish the principle in their professional code of practice, such as the Nursing & Midwifery Council (NMC), for example.

Assent

Assent is the expression of approval or agreement from a person who is not legally able to give full consent, typically used in the context of children or individuals with intellectual disabilities. It acknowledges their involvement in the decision-making process even if they cannot legally consent. Lots of staff may simply not think about this distinction to consent “as they are going along with” whatever the staff member has prompted them to do. Even sometimes when it involves a restrictive practice.

Dissent

Dissent is the expression of disagreement or refusal to undergo a specific treatment or procedure. It is important to consider dissent, especially in individuals who may not have the full capacity to consent, as it reflects their wishes and comfort levels. Unlike assent, here, staff are typically more aware they may be asking/coercing the supported person to do something they are less likely “to just go along with”.

Refusal

Refusal is the act of declining a treatment or procedure after being fully informed of the implications. A person with the capacity to make decisions can refuse treatment, and their decision must be respected by healthcare providers. Sometimes, as social care or healthcare staff, we may not like what the person has decided and feel it is not the best decision, but we must accept it and support the person in their decision.

Tools and Tips for Assessment

Websites/Resources

1. Mental Capacity Act 2005 – up to date with all changes known to be in force on or before 18 June 2024
2. Mental Capacity Act Code of Practice – People working with or caring for adults who lack capacity to make decisions for themselves have a legal duty to consider the Code of Practice.
3. Health and social care workers: Mental Capacity Act decisions – How the Mental Capacity Act 2005 applies to health and social care staff.
4. Independent Mental Capacity Advocate services – Independent Mental Capacity Advocate services can support the views and rights of people who lack mental capacity.
5. Mental Capacity Resource Centre – 39 Essex Chambers – Excellent resource for lots of resources and comments on emerging case law.
6. Blog – Mental Capacity Law & Policy – Comments, papers and articles from Alex Ruck Keene KC

Considerations

1. Communication Techniques: Simplify information, use visual aids, and ensure clear, jargon-free explanations to help individuals understand their options and make informed decisions.
2. Involvement of Multidisciplinary Teams: Collaborate with psychologists, social workers, and legal advisors to assess complex cases where capacity and consent are in question.
3. Document Everything: Keep thorough records of assessments, discussions, and decisions to ensure transparency and legal compliance. The Mental Capacity Act Code of Practice provides detailed guidance on documentation. Importantly, capture your decision-making process, why you did what you did, and why you dismissed other approaches.
4. Training and Education: We provide ongoing training for health and social care professionals on the legal and ethical aspects of their role and offer basic MCA awareness training for staff in these settings.
5. Mental Capacity Law is complex. Get proper professional legal advice early. Do not rely on the Internet as your source of decision-making

Conclusion

Understanding the distinctions between capacity, consent, assent, dissent, and refusal is essential for social care and healthcare professionals supporting individuals with intellectual disabilities, children or others who may lack the cognitive ability to process complex medical treatment. This could include some older adults with dementia or people with an acquired brain injury, for example. By accurately assessing these factors and respecting the individual’s rights, professionals can ensure ethical and effective care. Using appropriate tools and collaborative approaches can enhance decision-making processes and uphold the dignity and autonomy of those they support. Please get in touch if you think we can support you as you navigate your way through these legal concepts.