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  • Writer's pictureCameron Elsworth

Medical Law For Medicine Interviews: Capacity

Capacity? Consent? Confidentiality? Similarly sounding terms with important and different meanings. A firm understanding of the most commonly used medico-legal principles will assist you in providing both well-reasoned and factual answers to ethical questions during your medical school interviews. This blog series is intended to provide a comprehensive guide to the medico-legal principles underpinning medical decision making.

The first blog in our series will cover all things capacity! This includes;

· Defining capacity.

· The Mental Capacity Act.

· Assessing capacity.

· Deciding for individuals without capacity.

What is Capacity?

Capacity is the ability to use and understand the information needed to make a decision and to communicate any decision made. In a medical context, this is an individual’s ability to make decisions regarding their care. (consent to or refuse treatment)

If a patient is deemed to lack capacity, this means that their mind is impaired in some way which is rendering them unable to make decisions at that point in time.

Factors which can impair an individual’s mind and lead to them lacking capacity include:

· Dementia.

· Learning disabilities.

· Brain damage i.e. stroke or traumatic brain injury.

· Infection leading to confusion (temporary loss).

· Intoxication caused by the misuse of drugs or alcohol (temporary loss).

The Mental Capacity Act 2005

This is the legal principle that outlines the importance of patients having capacity in order to make decisions about their care. The Mental Capacity Act states that:

· We must assume a person has capacity unless proven otherwise.

· Wherever possible we must assist patients in making their own decisions.

· Unwise decisions do not indicate a lack of capacity (i.e. a Jehovah’s Witness refusing a life saving blood transfusion on religious grounds).

· If you make a decision for someone who does not have capacity, it must be in their best interests.

Capacity Assessment

Capacity can change over time, therefore it is important to assess the capacity at the time consent is required. To be deemed to have capacity, an patient must be able to:

· Understand information about the decision.

· Remember that information.

· Use that information to make a decision.

· Communicate their decision, by talking, using sign language or any other means.

Capacity is assessed by trained and experienced healthcare practitioners who are either recommending the treatment or investigation or directly involved in carrying out the treatment or investigation.

Best Interest Decisions – How To Decide Who Has Capacity and Who Lacks Capacity?

If an individual is deemed not to have capacity, they can no longer exercise their autonomy. In this case, a decision is made in line with their best interests (beneficence).

Best interest decisions are usually made by doctors and may include some input from the family or carers of the individual in question.

Summary of Important Principles For Medicine Interview: Medicine Consent

· Capacity is DECISION SPECIFIC meaning that an individual can have the capacity to make some decisions but not others. An example could include an individual with dementia; they may retain the capacity to accept or refuse medications but not for deciding between different surgical procedures.

· We must help individuals to make decisions regarding their treatment where possible, this may mean taking longer appointments or using communication aids.

· If an individual loses capacity (their autonomy), we must make a decision in line with their best interests (beneficence).


Information that patients share with their doctors is protected by the patients right to confidentiality. Maintaining confidentiality is essential for ensuring that trust remains between patints and their doctors.

Information is disclosed on a need-to-know basis and the minimum amount of information necessary should be disclosed. This means that only professionals relevant to a patient’s care can be given their medical information.

Doctors cannot break confidentiality without express prior consent from the patient unless the following situations arise:

· The patient is a risk to themselves i.e. threatening suicide.

· The patient is a risk to others i.e. says to their GP that when they leave the practice they are going to drink a bottle of vodka and drive home.

· The patient has a notifiable disease.

· There are concerns about the care/ safety of a vulnerable patient i.e. a patient without capacity.

· There are concerns surrounding child abuse or neglect in the patient’s home.

Closing Notes - Medical Capacity

This may seem like a lot of information, however it is all relatively simple! The interviews are not memory tests, therefore you do not need to repeat these legal principles word for word. However, understanding these key principles and working them into your ethical answers will add sophistication and depth to your responses in interviews.

Check out our other blog posts on medical law and how to ace the medical law station at your medical school interview -

Get in touch if you have any questions about medical ethics and law. Or if you would like to arrange tutoring or a mock interview!


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