Capacity to consent

...Solicitors want to know about Mr D's capacity to look after his own affairs but the GP is unsure about disclosing the information...

  • Date: 30 July 2014

BACKGROUND: Mr D is a 73-year-old man who was diagnosed with dementia several years ago. His condition has deteriorated in recent months and an application to the court of protection is being considered that would allow decisions about his financial affairs to be made on his behalf.

His GP, Dr H, receives a letter from a solicitor’s firm acting on the patient’s behalf seeking the doctor’s opinion as to his capacity to manage his personal affairs. The request is accompanied by a consent form signed by Mr D. Considering Mr D’s dementia, Dr H is unsure if this is valid and if the patient fully understood the implications when signing it. The doctor is reluctant to discuss these concerns with the solicitors for fear of breaching patient confidentiality. She contacts MDDUS for advice.

ANALYSIS/OUTCOME: Before responding to the solicitor, Dr H is advised to speak with the patient to assess his capacity to consent to the disclosure of information. His capacity may be impaired but it is possible he is still able to provide valid consent in these circumstances. If Dr H determines the patient lacks sufficient capacity to consent then, in the absence of a welfare attorney/court appointed deputy, Dr H should discuss the matter with an appropriate relative or close friend. It can be helpful to involve family members in these matters to ensure they are not likely to object, but this should be handled carefully as there may be conflicts of interest.

If Mr D is deemed to have sufficient capacity then the disclosure can be made. If not, the doctor should proceed on the basis of the patient’s best interests which would normally involve discussions with a patient’s relatives or carers.


  • Never assume a patient lacks capacity to make a decision based solely on a factor such as a medical condition or mental illness.
  • Patients with diminished capacity may still be able to make simple decisions about their care, even if they are unable to decide on more complex matters.

This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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