Literature Review on Provision of Appropriate and Accessible ...

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2.8.2 Assessment of capacity
It is the responsibility of the relevant medical practitioner to ensure
that a person has capacity to make a healthcare decision (LRC, 2005).
According to the Law Reform Commission the area of assessment
of capacity to make healthcare decisions is fraught with uncertainty
(2006: 31). Under current arrangements, health professionals have to
exercise personal judgement in assessing capacity and determining
how to proceed if an adult is assessed as lacking the capacity to make a
healthcare decision. In non-emergency situations (where the doctrine of
necessity is not applicable), healthcare professionals find themselves in a
difficult position (LRC, 2006).
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The only professional guidance available for Irish medical professionals
is found in the Medical Council’s ‘A Guide to Ethical Conduct and
Behaviour’ (The Medical Council Ireland, 2004: 31), which states:
Informed consent can only be obtained by a doctor who has
sufficient training and experience to be able to explain the
intervention, the risks and benefits and the alternatives. In
obtaining this consent the doctor must satisfy himself/herself
that the patient understands what is involved by explaining in
appropriate terminol ogy. A competent adult patient has the right
to refuse treatment. While the deci sion must be respected, the
assessment of competence and the discussion on consent should
be carried out in conjunction with a senior colleague.
According to this guide, if a person with a disability lacks the capacity to
give consent, a consultation involving parents/guardians and appropriate
carers should occur (The Medical Council, Ireland, 2004: 11).
The Law Reform Commission (LRC) has recognised that practices have
now become established such as seeking a signature on a consent form,
which has no standing in law. The Law Reform Commission asserts that
there is a need for guidance for medical practitioners in relation to:
• How capacity to make healthcare decisions should be assessed