When capacity to consent is in question: a practical framework for radiographers

Consent in clinical practice is a complex but important topic. A new flowchart is helping to simplify the process of obtaining consent for radiographers

By Lisa Booth, Institute of Health, University of Cumbria; Adam Spacey, School of Health and Society, University of Salford; Samantha L.J. Bowden, Lancashire and South Cumbria NHS Foundation Trust (not pictured); Paul K. Miller, Institute of Health, University of Cumbria

By Lisa Booth, Institute of Health, University of Cumbria; Adam Spacey, School of Health and Society, University of Salford; Samantha L.J. Bowden, Lancashire and South Cumbria NHS Foundation Trust (not pictured); Paul K. Miller, Institute of Health, University of Cumbria

Acentral tenet of clinical practice is to obtain informed consent from patients. For this consent to be considered legally valid, it must be given voluntarily and be adequately informed, and the individual must possess decision-making capacity1. Of these elements, it is the assessment of capacity that appears to present the greatest challenge for diagnostic radiographers in clinical practice2. This is of particular significance as proceeding without valid consent may expose practitioners to allegations of trespass to the person, assault or battery3. 

Whether a person has capacity depends on their ability to make a specific decision at the time it needs to be made, rather than a fixed or general ability4. Therefore, a lack of capacity may arise for a number of reasons, some of which may be permanent – for example, stroke, head injury or late-stage dementia – and some temporary, like the effects of certain medications or alcohol. In the context of diagnostic imaging, such conditions are frequently encountered, meaning that radiographers are regularly required to consider questions of capacity in clinical practice. However, the uncertain fixity and duration of these impairments present a distinct set of practical, legal and ethical considerations, which our previous research has identified as particularly challenging for radiographers5.

Although the Mental Capacity Act (MCA)6 provides a structured legal framework to guide practitioners when capacity is in question, practitioners report uncertainty in distinguishing diagnosis from decisional incapacity, assessing fluctuating capacity under time pressure, and determining the appropriate level of documentation required for legal scrutiny7,8. Following the Supreme Court decision in Montgomery v Lanarkshire Health Board in 2015, ‘failure to warn before consent’ claims have increased significantly9, reflecting a heightened scrutiny of consent practices. The need for clear, profession-specific guidance on obtaining informed consent in diagnostic radiography is therefore becoming increasingly important.

Against this backdrop and following discussions with diagnostic radiographers in our previous research5, the RAD‑CHECK flowchart – a structured decision-support tool, funded as part of a College of Radiographers Industry Partnership Scheme-funded project – was designed to guide radiographers through key steps in assessing capacity, and making or escalating best‑interest decisions. Informed at all points by key evidence, it translates the MCA into usable actions for everyday radiography practice. What follows is a step-by-step guide to applying RAD-CHECK in practice. 

The RAD‑CHECK flowchart

Step 1 – Is the person capable of consenting to the examination?

It is important to note that capacity is transaction based; that is, it depends on the decision being made at a particular time. Therefore, a patient may be competent to make some healthcare decisions, even if they are not competent to make others10. Therefore, the presence of impairment alone is insufficient to determine whether a person lacks capacity; the MCA requires further consideration before concluding that capacity is absent. This is known as the functional test of capacity and includes consideration of whether the individual is able to understand the information relevant to the decision being made, retain that information for the duration of the procedure, use or weigh that information as part of the decision-making process, and communicate the decision verbally, non-verbally or by any other means.

Step 2 – Would the person be capable of consenting to the examination with support?

Under principle 2 of the MCA, a person should only be considered as unable to make a decision after all practical steps to assist them have been tried and have not succeeded. In support of this, the Equality Act 201011 also states that reasonable adjustments should be made to support people with disabilities. In the case of an imaging examination, reasonable adjustments might include simple changes to communication. For example, shorter sentences, pauses between information points, asking closed questions and giving extra time for the person to respond. These strategies support the slower processing speeds that are often associated with those impairments known to affect capacity12. Family, carers and familiar people often know the best way to communicate with the person experiencing cognitive impairment and should be utilised where possible13. In the absence of these, hospital passports can offer guidance. When a person has difficulty with the processing of information, the environment needs to be free from distractions that overstimulate and distract from what is being said14.

Step 3 – Would the person be capable of giving consent at another time?

Some impairments that affect capacity can be temporary, such as those caused by medications or alcohol. It might also be that a person has capacity at different times of day; for example, with mid-stage dementia, a person can experience sundowning, a term used to describe increased confusion and agitation occurring in the late afternoon or evening that may be less present in the morning15. In such cases, if the examination can be delayed to a time when the person might have capacity, then it would not be appropriate to proceed.

Step 4 – The person is not capable of consenting to THIS examination

When it is determined that a person is unable to give consent to the examination, the radiographer needs to consider whether a lasting power of attorney (LPA) has been appointed. This is a legal arrangement under the MCA that allows an individual to appoint persons (attorneys) to make decisions about their health and personal welfare if they lose the capacity to make those decisions themselves. It should be noted that ‘next of kin’ or similar persons have no automatic legal authority to make health and welfare decisions on behalf of a person who lacks capacity, although it is prudent to consider their views on what the person would have wanted before they lost capacity16. Should an LPA not be present, consider whether the person has an advance decision/statement in place.

Step 5 - Is the examination in the person’s best interests?

Should no LPA or advance decision be in place, the radiographer needs to determine if the examination is in the person’s best interests. Although the MCA does not provide a definition of what constitutes acting in a person’s best interests, the Mental Health Act 198317 defines these actions as those that will save the person’s life, prevent deterioration of the person’s condition or improve the person’s condition. If the examination is not considered to be in the person’s best interests using this definition, then the radiographer should not proceed with the examination. This decision is separate from considering whether an examination is justified under IR(ME)R regulations and will require discussions with the referrer.

Step 6 – Proceed without consent in the person’s best interests

A decision to proceed without consent because the examination is in the person’s best interests is not carte blanche to employ any technique to achieve the desired outcome. The radiographer must consider how to achieve the outcome using options that are available, which will cause the least physical and psychological harm. This might include utilising alternative examinations or having a familiar person present. Although section 5 of the MCA permits physical or chemical restraint without separate authorisation under Deprivation of Liberty Safeguards, the restraint must be a last resort and proportionate to the benefits of the examination6.

Recording your decision

It is also important to record the decision to proceed in the local radiology system in case of legal scrutiny. This record needs to include: 

A. Assessment of capacity

  • The decision being made; eg, CT head with contrast
  • The impairment identified; eg, advanced dementia, intoxication
  • Evidence that the functional test was applied: understanding, retention, communication
  • The time and date of assessment
  • Whether capacity was fluctuating
  • Avoiding vague entries such as ‘no capacity’

B. Steps taken to support decision making

  • The information provided and how it was explained
  • The use of simple language, visual aids or written information
  • The use of an interpreter or communication support used
  • Environmental adjustments (eg, a quieter room)

C. Urgency and clinical justification

  • Why the procedure was necessary
  • Whether it was urgent or could safely be delayed
  • Risks of not proceeding
  • Proportionality of intervention

D. Best interests decision-making process

  • Who was consulted (family, carers, LPA, IMCA)
  • Whether a valid advance decision exists
  • The rationale for concluding that the procedure was in the patient’s best interests
  • If an LPA exists, document who they are and whether they were contacted (and if not, why not)

E. If restraint was used:

  • Why it was necessary
  • Why it was proportionate
  • Why it was the least restrictive option

A simplified approach

Obtaining valid informed consent remains a fundamental ethical and legal requirement within diagnostic radiography practice. However, assessing decision-making capacity in busy clinical environments presents considerable challenges, particularly when impairments affecting capacity may be temporary, fluctuating or difficult to interpret. The RAD-CHECK framework highlighted here offers a structured, pragmatic approach to these challenges by translating the principles of the MCA into a clear sequence of actions that can be applied in everyday imaging practice. By guiding practitioners through capacity assessment, support strategies, consideration of legal authority and best interests decision making, the tool helps radiographers make consistent and defensible decisions when consent cannot be readily obtained.

To support its use in clinical settings, departments can download the RAD-CHECK flowchart for display within imaging departments by clicking here.  We also welcome your feedback on the RAD-CHECK flowchart. Click here to share your initial thoughts.

References

1. Hassan M. Informed consent and the law – an English legal perspective. Digestive Diseases 2008;26:23–27. doi: 10.1159/000109381.

2. Miller PK, Booth L and Spacey A. Dementia and clinical interaction in frontline radiography: Mapping the practical experiences of junior clinicians in the UK. Dementia 2019;18:1010–1024. doi: 10.1177/1471301217700742.

3. Bond E and Gardner J. Rethinking ‘Negligence’ in ‘Medical Negligence’: Can Trespass to the Person Torts Help Protect Autonomy?. In: Horsey K (ed) Diverse Voices in Tort Law. Bristol: Bristol University Press, 2024, p.201.

4. Social Care Institute for Excellence. Mental Capacity Act 2005 at a glance, https://www.scie.org.uk/mca/introduction/mental-capacity-act-2005-at-a-glance/.

5. Spacey A, Booth L, Bowden SLJ and Miller PK. Exploring diagnostic radiographers’ experiences and understandings of informed consent and capacity assessment during general radiography imaging examinations of persons living with dementia: A qualitative interview study of UK practice. Radiography 2026;32:103309. doi: 10.1016/j.radi.2025.103309.

6. Mental Capacity Act 2005. London: The Stationery Office. https://www.legislation.gov.uk/ukpga/2005/9/contents.

7. Ariyo K, McWilliams A, David AS and Owen GS. Experiences of assessing mental capacity in England and Wales: A large-scale survey of professionals. Wellcome Open Research 2021;6:144. doi: 10.12688/wellcomeopenres.16823.1.

8. Coggon J. Mental capacity law, autonomy, and best interests: An argument for conceptual and practical clarity in the court of protection. Medical Law Review 2016;24:396–414. doi: 10.1093/medlaw/fww034.

9. Wald DS, Bestwick JP and Kelly P. The effect of the Montgomery judgment on settled claims against the national health service due to failure to inform before giving consent to treatment. QJM: An International Journal of Medicine 2020;113:721–725. doi: 10.1093/qjmed/hcaa082.

10. Department of Health and Social Care. Reference guide to consent for examination or treatment (second edition). https://assets.publishing.service.gov.uk/media/5a7abdcee5274a34770e6cdb/dh_103653__1_.pdf.

11. Equality Act 2010. London: The Stationery Office. https://www.legislation.gov.uk/ukpga/2010/15/contents.

12. Grossman M, Zurif E, Lee C, Prather P, Kalmanson J, Stern MB, et al. Information processing speed and sentence comprehension in Parkinson’s disease. Neuropsychology 2002;16:174–181. doi: 10.1037/0894-4105.16.2.174.

13. Lyons G, De Bortoli T and Arthur-Kelly M. Triangulated proxy reporting: A technique for improving how communication partners come to know people with severe cognitive impairment. Disability and Rehabilitation 2017;39:1814–1820. doi: 10.1080/09638288.2016.1211759.

14. Stans SEA, Dalemans RJP, de Witte LP, Smeets HWH and Beurskens AJ. The role of the physical environment in conversations between people who are communication vulnerable and health-care professionals: A scoping review. Disability and Rehabilitation 2017;39:2594–2605. doi: 10.1080/09638288.2016.1239769.

15. Bachman D and Rabins P. “Sundowning” and other temporally associated agitation states in dementia patients. Annual Review of Medicine 2006;57:499–511. doi: 10.1146/annurev.med.57.071604.141451.

16. James E and Cornock MA. The legal status of the term ‘next of kin’. Nursing Standard 2008;22:45–48. doi: 10.7748/ns2008.07.22.44.45.c6588.

17. Mental Health Act 1983. London: The Stationery Office. https://www.legislation.gov.uk/ukpga/1983/20/contents.

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