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 

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


Variable mental capacity can make the issue of consent more complex. Picture: iStock

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 their care and treatment.

The principle of self-determination

Conversely, a patient deemed to have full mental capacity has the right to refuse care and treatment, even if this poses a risk to their health and/or well-being. This is due to self-determination, a key principle behind the law of consent; if a patient is not allowed to refuse treatment, they won’t have self-determination over their own health and body.

So if a patient is deemed to have the mental capacity to make decisions about a specific aspect of their care or treatment, their refusal must be honoured. If the patient subsequently changes their mind or becomes unable to make decisions about the treatment, it could still be provided in the patient’s best interests as long as they have not refused in advance.

Some patients – including those living with dementia or certain mental health conditions, such as bipolar disorder – have fluctuating levels of mental capacity. This means they have the capacity to make decisions about some aspects of their care and treatment but not others, or they have the capacity to make a decision now but they did not have capacity yesterday and may not have capacity tomorrow.

‘Decisions about a patient’s capacity are situation-specific – they are made at the time that treatment or care is needed by the person who wants to provide it’

The patient’s right to choose must be respected at the time they have the capacity to make decisions. During times they lack capacity, they should be treated according to any previous decisions. If these do not exist, they should be treated according to their best interests at the time the care or treatment is required.


Advance statements of care preferences can be useful. Picture: iStock

Decisions about a patient’s capacity are situation-specific, meaning they are made at the time that treatment or care is needed by the person who is to provide it. If you are not qualified to make a decision about the patient’s capacity but have concerns, you should discuss this with another healthcare professional who is able to assess capacity.  

Documenting advance decisions

Patients who are aware they have fluctuating levels of mental capacity can appoint someone to act on their behalf when they lack capacity. They may also have an advance decision document in place outlining the care and treatment they refuse to receive, and/or an advance statement of their wishes and care preferences.

If it is known that a patient has levels of capacity that varies, best practice would be to delay decision-making until the patient’s capacity has returned, enabling them to participate in decision-making whenever possible.

‘Treating someone without their consent is a serious matter and should only be undertaken where it is lawful to do so’

Alternatively, when the patient has the necessary capacity, they can be involved in a case conference to discuss what to do if they are deemed not to have the capacity to make a decision about care or treatment at that time.

This is essentially seeking the patient’s preference in the event of a future situation that can be used in any discussion of that patient’s best interests, similar to an advance statement of their wishes and care preferences.

If in doubt, refer upwards

Fluctuations in mental capacity can be problematic for health professionals if a patient refuses treatment, but treating someone without their consent is a serious matter and should only be undertaken where it is lawful to do so.

If there is ever any doubt about a patient’s capacity to refuse care or treatment, this should be referred to a more senior healthcare practitioner.


Marc Cornock is a qualified nurse, academic lawyer and senior lecturer at the Open University

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