Mental Capacity and Consent

As the Care Quality Commission publishes the results of its first inspections in England, it is becoming clear how the requirements of the Health and Social Care Act 2008 are being prioritised and how the available evidence is being interpreted. This article looks at one of the areas that has frequently been highlighted by the inspectors, that being evidence of how the requirements of Mental Capacity Act 2005 and consent to dental treatment are being observed for vulnerable adults and children.

The aim of the Act is to protect patients who lack capacity to make informed decisions. It aims to support their involvement in making decisions as far as an individual is able to. Under the terms of the Mental Capacity Act 2007 patients have a fundamental right to be provided with sufficient information, in a format they understand about their treatment options. Dental professionals should act to enable patients to make informed decisions based on a clear understanding of the probable outcomes any of treatments they consent to; and the probable outcomes of refusing treatment. Obtaining and recording appropriate consent for dental treatment is a fundamental role of the dental team.

To ensure that consistent levels of care and consent are secured, dental teams as a whole need to develop high quality policies and procedures for providing patients with sufficient information to allow them to make fully informed decisions. At no time should any patient being placed under duress. The following five principles are set out in the Act to ensure patients have the capacity to consent to treatment. 1 Every adult has the right to make health care decisions and must be deemed able to do so unless a formal assessment indicates otherwise. 2 People must be supported to make a decision before anyone concludes they lack the capacity to make a decision for them self. 3 People have the right to make what others might regard as an unwise choice and cannot be treated as lacking capacity for that reason alone. 4 If a patient is shown to lack mental capacity, anything done for them must be done in their best interests. 5 Anything done for, or on behalf of people without the capacity to consent should be least restrictive of their basic rights and freedoms.


If a practitioner has any doubts regarding an individual patient then it would be sensible to seek specific advice. The decision making process should consider the views of others with an interest in the person's welfare, such as primary carer, nearest relative, named person, attorney or guardian In general terms of the Act "incapable" means incapable one, or more of the following:     

Acting on decisions Making decisions Communication decisions Understanding decisions Remembering decisions previously made

An appropriately trained dental professional must make an assessment of the patient’s ability to understand the specific treatment being suggested and make an informed decision. The assessment will be based upon the 5 Principles embedded in the Mental Capacity Act of 2005. It should be born in mind that an individual might be able to consent to some treatment but not to others. Dentists should consider in the first instance whether the patient can actually consent on their own behalf to the treatment proposed. However, if the view is that the patient does not have capacity to consent, then dentists should be aware that only clinicians who have undertaken an approved training course can sign the required section 47 certificate. Dentists are advised to contact their protection organisation for advice in specific situations.

Recording patients consent is an essential part of providing quality dental services. To support practices in maintaining effective records MINT has developed a Capacity to Consent Assessment Tool. This assessment can be completed on behalf of clinicians by a trained dental nurse or care coordinator. It aims to record the patients’ understanding and ability to make an informed decision. If you would like a copy of our assessment form please contact me and I would be pleased to email a copy to you with the compliments of MINT.

Tess Fielding