Expert advice

Legal advice: What can I do if a patient with fluctuating mental capacity refuses care?

Issues to consider when a patient’s capacity to give consent is intermittent 
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Issues to consider when a patient’s capacity to give consent is intermittent

In the context of consent, mental capacity refers to a patient’s ability to participate in the decision-making process about their care or treatment.

If there is any doubt about a patient’s mental capacity, the patient needs to be formally assessed by someone with the appropriate skills to do so. This could be their GP – if the assessment requires someone who is familiar with the patient and their condition, for example – or a mental health specialist if there are concerns about the patient’s mental health.

If someone totally lacks mental capacity – for example if they are unconscious or lack any awareness of their existence – they would not be able to participate in making decisions about

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