Consent, Capacity and the Law

Study guide

The heaviest topic in the certificate, and the one where a confident wrong answer is easiest to give. Almost every stem describes a situation and asks who is entitled to decide, on what basis, and under which piece of law — so the revision that works is learning the framework as a structure, not collecting facts about it. Note the jurisdiction as you go: the Mental Capacity Act applies in England and Wales, and a candidate working in Scotland or Northern Ireland should check the framework in force there.

The five statutory principles

The Mental Capacity Act opens with five principles, and a large share of the questions are really asking which one governs the situation described.

• Capacity is presumed until the opposite is established — the presumption is the starting point, not a conclusion reached after assessment.
• An unwise decision is not evidence of incapacity. This is the principle most often contradicted by a plausible-sounding distractor.
• Everything practicable must be done to help a person decide for themselves before they are treated as unable to, and where a decision is made for someone, it must be the least restrictive option that meets the need.

Assessing capacity

The Act sets a two-stage test, and the second stage has four elements. Questions ask for both the structure and the detail.

• The diagnostic stage and the functional stage ask different things, and a question that describes one is not asking about the other.
• The four elements of the functional test work together rather than as alternatives — failing any one of them is enough.
• Capacity is decision-specific and time-specific. Consent given for one procedure last month says nothing about capacity for a different procedure today, and fluctuating capacity is a scheduling question as much as a legal one.

Consent, and who may give it

The single most examined misconception in the topic, and the one worth over-learning.

• In England and Wales a relative has no authority to consent for an adult by virtue of being a relative. Authority comes from a registered personal welfare Lasting Power of Attorney or a court-appointed deputyship, and from nowhere else.
• Where nobody holds that authority, treatment proceeds on a best interests decision rather than on somebody else’s consent — a different mechanism, not a substitute signature.
• A best interests decision may not be based on assumptions about a person’s age, appearance, condition or behaviour, and where there is nobody appropriate to consult, an independent advocate must be involved.
• An extended matching set on decision-makers pairs a described situation with the authority that actually holds. Work from the source of authority, not from who happens to be in the room.

Safeguarding adults

Recognising a concern and knowing what follows. The categories are examinable in their own right.

• Adult safeguarding in England sits under the Care Act statutory guidance, which sets conditions for when the duties are engaged. Older material describing it under "No Secrets" is superseded, and appears as a distractor precisely for that reason.
• The categories of abuse are tested by scenario: an extended matching set describes a situation and asks which category it falls into, including neglect, financial abuse, modern slavery and discriminatory abuse.
• A concern raised by a person who has capacity and does not want it taken further is a distinct and examinable situation.

Equality law, confidentiality and records

The Equality Act runs alongside the Mental Capacity Act rather than overlapping with it, and its vocabulary is defined.

• The Act’s definition of disability turns on "substantial" and "long-term" adverse effect, and both words have specific meanings in the statutory guidance rather than everyday ones.
• The duty to make reasonable adjustments is anticipatory for a service provider — it arises before a particular disabled person turns up, not in response to them.
• Records are where a best interests decision is evidenced, and confidentiality questions turn on what the patient has agreed to rather than on who is asking.

In the exam Read every stem for who is deciding and under what authority. The options are usually written so that a correct-sounding action is attributed to the wrong person, or a real legal instrument is applied to a situation it does not govern. Learn the instruments as a set — the Mental Capacity Act and its Code, the Equality Act, the Care Act guidance — and work from the current text, since this is the fastest-moving area in the certificate.