The scene

A patient was admitted for a surgical repair of an inguinal hernia. He was a man in his 20s with a learning disability who lived in supported accommodation, and had last been seen in clinic more than six months earlier with his mother present.

According to the last clinic appointment letter, the patient's mother had deputyship to make decisions about her son's care, as he did not have the mental capacity to consent to the procedure. The clinic letter had documented that the discussion about the procedure had taken place with both the mother and the patient present, and the consent form had been signed by the mother.

On the morning of the surgical list, the patient had attended the day surgery with his carer. The surgeon who was due to perform the operation - an MDU member - was concerned that he wasn't able to assess whether there had been change to the patient's condition or if there were any new concerns that might have affected the original consent.

Because the patient didn't have the mental capacity to confirm this himself, the surgeon was therefore unclear if he had consent to proceed, and rang the MDU for advice.

MDU advice

In their discussion, the MDU's adviser confirmed that the surgeon had assessed the patient's capacity himself, and was satisfied that the patient did not have the capacity to decide whether to have surgery himself - in line with the guidance in the Mental Capacity Act and the GMC's guidance, Decision making and consent (2020).

Because more than six months had passed since the original decision, it was important for it to be reviewed, in line with paragraphs 57 and 58 of the GMC's guidance and the Royal College of Surgeon's guidance, Consent supported decision making (2018).

The mother had deputyship after being appointed a deputy for health and welfare by the Court of Protection, so the adviser suggested the surgeon call her if she wasn't able to be present to confirm there had been no changes since the original decision had been made, and then countersign the form again in line with the RCS guidance.

There was no need for the patient or his deputy to sign the form again.

The adviser also suggested calling the trust's legal department to ensure that its position was aligned, and that it did not specifically require the patient's deputy to be present in person.

Outcome

The surgeon called trust's legal department, who confirmed their position was the same. He then called the patient's mother, who confirmed there had been no change that would affect the decision to consent to surgery, and the patient's operation went ahead.

This dilemma is fictional but based on members' experiences and the types of calls we receive to our advice line.

Consent for surgery

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