Assessment of capacity to make decisions should be a routine part of assessment. However, just because a person is ill, advanced in years or has frailty, it does not automatically follow that they lack capacity. Capacity is assumed to be present until shown otherwise.
This is formally defined under The Mental Capacity Act 2005 in England & Wales. In Scotland, the relevant legislation is the Adults with Incapacity (Scotland) Act 2000. In Northern Ireland, new mental health legislation was in draft form at the time of publication (the Mental Capacity Bill).
Principles
Under the Mental Capacity Act 2005 (MCA), the following principles apply:
- Capacity is assumed to be present until shown otherwise. The onus is on the person assessing capacity to provide evidence of its absence
- Individuals should receive whatever support they require to make their own decision;s for example: interpreters, communication aids and time.
- Individuals have the right to make decisions others may see as unwise or eccentric, but the reasons for eccentric decisions should be explored
- Decisions made on behalf of people lacking capacity must be in their best interests; decision makers should try to establish what the person would want in this situation
- Interventions made on behalf of a person lacking capacity must be the least restrictive option. For example, for a person lacking capacity who is needing support with personal care, remaining at home with carer support is less restrictive than moving to a care home.
- Capacity to decide is specific to the decision in question, and so may be present for some choices (e.g. what to have for breakfast) but absent for others (e.g. deciding whether to have an operation).
- If there is a possibility of capacity returning, and the decision can be delayed, the assessment should wait until the person has recovered. This is particularly important for people with delirium who are likely to improve.
Testing capacity
There is no such thing as a ‘general test of capacity’. It is always specific to the decision in question, and can be undertaken by any professional with appropriate training. It does not usually require specialist mental health input unless there is diagnostic doubt about a mental health disorder.
There are two stages to the test of capacity:
- The patient cannot make a decision due to ‘a condition of mind or brain.’ For older people this is most often dementia or delirium, but other conditions such as learning disability or severe depression may also occur. It therefore follows that if a person does NOT have a condition of mind or brain, capacity should be assumed present.
- The person cannot understand, retain, weigh up, or communicate information relevant to the decision in question. Evidence of inability to do this relevant to the decision must be recorded.
Both parts of the test must be satisfied in order to state that capacity is lacking. The reasons must be clearly documented.
Advance Care Planning and mental capacity
Advance care planning for a person who has lost capacity must be in accordance with the person’s best interests. Determination of best interests must take into account that person’s previous wishes and feelings as far as this can be ascertained.
Previous wishes and feelings may be established by:
- An Advance Statement.
- The views of a legal proxy with powers appropriate to the decision in question.
- Verbal statements made by the person before capacity was lost.
1 and 2 are legally binding and must be observed. It is good practice to seek the views of those close to the patient, as well as other members of the healthcare team when taking decisions in a person’s best interests.
Written Advance Statements may be informal or formal, but all should be recorded in the patient’s record and available to all teams involved in their care.
Advance decision to refuse treatment (ADRT)
This must be both valid and applicable. 'Valid' means the document is signed by the patient, dated, and witnessed. There must be no evidence that the patient has subsequently changed their mind about the ADRT. 'Applicable' means the ADRT is relevant to the current situation. If the document concerns life-sustaining treatment, it must state the refusal applies even though it may shorten life.
Powers of Attorney
A person with capacity (the donor) may appoint another person (the attorney) to make decisions on their behalf when they lose capacity. Under the Mental Capacity Act 2005, the Adults with Incapacity (Scotland) Act 2000, and the draft Mental Capacity Bill (Northern Ireland), attorneys may be appointed for property and financial affairs, and/or for health and welfare decisions. Lasting Powers of Attorney must be registered with the Office of the Public Guardian before coming into effect. It is good practice to ask to see the papers of a person who claims to act as Attorney.
Independent Mental Capacity Advocate
In England & Wales, when a decision is required for a person lacking capacity who is unfriended, consideration should be given to appointment of an Independent Mental Capacity Advocate (IMCA). A person is ‘unfriended’ if they lack effective next of kin and have no other friends or relations to speak on their behalf. An IMCA is required for serious medical decisions, and when a change of residence (e.g. moving to a care home) is contemplated.
Deprivation of Liberty Safeguards
People who lack capacity should only be deprived of their liberty when it is in their best interest, and in the least restrictive way possible. Examples of deprivation of liberty include:
- Medication being given against a person's will.
- Staff having complete control over a patient's care or movements for a long period.
- Staff making all decisions about a patient, including choices about assessments, treatment and visitors.
People affected by such deprivations may be in hospital, care homes or supported living environments. The nurse in charge or home manager must apply to the Court of Protection for authorisation to ensure the loss of liberty is lawful. The safeguards allow for a representative for the person affected who may challenge the deprivation and ensure it is reviewed regularly.
Further information: mental capacity in Scotland
The Adults with Incapacity (Scotland) Act 2000 describes the definition of (and therefore the practice of testing for) capacity slightly differently. The Act has five overarching principles: of benefit to the person, of using the least restrictive option, of taking into account the wishes of the person, of involving relevant others and of encouraging the development of new skills. Importantly, the Act allows the courts to appoint a Guardian to manage the financial and welfare affairs of a person who lacks capacity. In the absence of a legal proxy, medical treatment is authorised under the Act as long as the overarching principles are followed. At present there are no specific provisions for Deprivation of Liberty – if someone who lacks capacity requires to be in a setting not of their choosing then the Mental Health (Care and Treatment) (Scotland) Act 2003 may need to be utilised. For further details on the Adults with Incapacity Act see the Scottish Government website.