Decision-Making Capacity and its Relationship to a Legally Valid Consent: Ethical, Legal and Professional Context

Decision-making capacity has been researched from within the disciplines of bioethics, medicine and law. The field of capacity assessment is dominated by tension between the principles of autonomy (self-determination) and beneficence (protection). Further, decision-making capacity is argued to be the central component of a legally valid consent. This article discusses the relevant ethical, legal and professional responsibilities relating to decision-making capacity and consent to treatment within health care. It begins with an overview of the ethical principles underpinning decision-making capacity and consent, and follows with a legal analysis of these concepts, focusing on the common law of trespass and negligence. The article then explores the concepts of best interests and necessity, which underpin the treatment of incapacitated persons, before concluding with an examination of treatment refusal and legislation relating to decision-making capacity and consent to treatment.