Assessing Mental Capacity

Background

The Mental Capacity Act (2005)

The Mental Capacity Act (2005) provides a legal framework to assess a person’s decision-making ability. Failing to assess a person’s capacity is negligent, emphasising the importance of fully informing people about their decision’s risks and benefits, ensuring autonomy and fully-informed choice. Key principles of the Act are:

• Presumption of capacity: people are presumed to have capacity unless proven otherwise.
• Support decision-making: people must be given all support possible to make their decision (e.g. using visual aids, interpreters, diagrams, analogies etc.).
• Right to make unwise decisions: people with capacity have the right to make decisions deemed unwise by others, provided they align with the person’s values and are free from coercion.
• Best interests: decisions made for people without capacity should be made in their best interests, opting for the least restrictive option.

Capacity assessments are decision-specific; lacking capacity in one area does not mean the person lacks capacity in another. Each decision must be assessed separately.

Best interests

If a person lacks capacity, then decisions are made on their behalf in their best interests. This should be the least restrictive option and some factors that should be taken into account when making these decisions include:

• Legal representatives: do they have a Lasting Power of Attorney (LPA) in health or an Advance Decision?
• Past and present wishes: have they mentioned anything in the past about similar situations?
• Input from close people: what are the opinions of their family, friends, carers etc.? – they will know the patient better. However, they do not make the final decision, only their views are factored in.
• Need for advocacy: if they have no other representatives (e.g. family and friends), they may need an Independent Mental Capacity Advocate.

Assessing capacity

Capacity assessment involves a two-step process:

• Is there any impairment/disturbance of the mind? Is there a problem that affects mental functioning, such as dementia, delirium, psychiatric conditions, or unconsciousness?
• Does this disturbance impact decision-making? Using ‘UR With Capacity’ can help:
  • Understanding: can they understand intervention details, including what it is, its indications, risks, benefits, and the risks of not having it done?
  • Retaining information: can they hold on to the information long enough to make a decision?
  • Weighing up information: can they weigh up the pros and cons to make a decision?
  • Communicating the decision: are they able to communicate their decision?

OSCE Tips and Scenarios

Possible scenarios

Possible OSCE stations could include:

• Temporary/acute capacity loss: such as acute delirium or psychosis. Do the assessment and if possible, offer to wait until they recover and repeat the assessment.
• Chronic capacity loss: such as a patient with dementia.
• Self-discharging patients, refusing treatment, or refusing admission

Tips for the station

Never make assumptions: having dementia or any other condition that could predispose to lacking capacity does not mean they lack capacity. You must assess capacity each time for every decision, as it is decision-specific.

Use a systematic approach: follow a structured approach when assessing a person’s capacity, working through each principle discussed above. The examiner may ask you to present your capacity assessment, and doing this systematically shows your understanding of the process and ensures nothing is missed. For example “I feel this patient lacks capacity because they cannot understand the information, retain it long enough to make a decision, and cannot weigh up its pros and cons. Even though they can communicate their decision, they do not have capacity as all of these have not been met”. Also re-iterate that you would assess capacity for each intervention separately, as capacity is decision-specific.

Be clear about serious complications and death, don’t beat around the bush: you must actively explore their understanding of serious and life-threatening risks including death. During the station, these phrases, including saying ‘death’ outright, must be said. Being unclear about this may instantly fail you. Discussing death can be awkward or difficult to articulate nicely, however, it is something that must be discussed.

Know what you would do next and the limits of your competence: if you are asked about the next steps and you consider the patient to lack capacity, say that you would first document your assessment and then speak to your senior before filling out any consent forms. Your senior would decide on their behalf in their best interests.

Mistakes people make

Some mistakes made include:

• Not exploring patient perspectives: failing to explore the background leading up to now, the patient’s viewpoints and concerns, and not acknowledging these.
• Not exploring patient expectations and negotiating: failing to explore the patient’s expectations and preferences, and failing to negotiate and suggest a plan of action.
• Lack of clear consultation closure: failing to conclude the consultation with a clear plan moving forward and leaving patients uncertain about the next steps.
• Monologuing and/or jargon: engaging in one-sided communication rather than facilitating dialogue and discussion with understandable language.
• Inadequate responses to questions: struggling to confidently and accurately questions that arise and failing to address concerns, leading to confusion and dissatisfaction.
• Failing to mention death: explaining that a possible decision carries the risk of death can be tricky, however, it is essential the patient understands this risk in scenarios where it may be a possibility and must be said. Do not paraphrase this (e.g. ‘pass away’) and be clear, using the word ‘death’.
• A lack of knowledge and an over-reliance on seniors and leaflets: depending excessively on senior advice or leaflets to compensate for knowledge gaps and underestimating their responsibility in patient care.
• Not understanding professional limits: offering to perform tasks beyond their grade level and not knowing the limits of their competence.

Key Communication Skills

Explaining

Never launch into explaining straight away: keep things patient-centred and use ideas, concerns, and expectations (ICE) throughout. Try to avoid collecting them all at the start and instead, ask about them and address them as they arise.

Chunk and check understanding: after each segment of information, ask if they understand, such as by asking “Does that make sense?” and “Is there anything else you’d like to ask about that part?”.

Avoid all medical jargon – explain everything in words that the general public would understand (e.g. saying an ‘underactive thyroid’ instead of ‘hypothyroidism’).

Be honest, clear, and sensitive, and never beat around the bush: everything the patient needs to know must be said, however, this should be done sensitively. This includes explaining the risks of serious or life-threatening complications and death and actively saying these words.

Empathy

Empathise appropriately and put a positive spin where possible: reflect the patient’s emotions and give reassurance, but do not give false reassurance or promise something you can’t guarantee. Also, reassure the patient that you’ll try your best to help them. For example, if a patient says they are worried about their diagnosis, you could say “It is natural to be worried about a new diagnosis, but we are here to help and address any concerns you might have”.

Acknowledge their feelings but avoid collusion: for example, if a patient is angry towards a colleague, you could say “I can how this situation can make you feel that way”. Avoid taking sides.

Consider the need for a breaking bad news approach: always explore the events leading up to the current situation to gauge what the patient knows and has experienced before explaining anything. For example, a patient has had a series of tests for possible cancer and is anxious about the result but does not know why they were given the tests.

Potential Ideas, Concerns, and Expectations

Some ideas, concerns, and expectations include:

• “Why can’t I go home?”
• “Why am I being told what to do?”
• “If I feel better now, why can’t I leave now?”
• “Can’t I take any medication at home instead?”
• “I don’t like needles, can’t something else be done instead?”
• “I don’t have anything with me, I can’t go home and get my things”
• “My friend/loved one is overreacting, I don’t think it’s this serious”
• “I don’t want to be a waste of time and resources”
• “I know these people are going to hurt me”

Approach

Introduction

• Wash hands and introduce yourself: your full name and role.
• Confirm their identity: their full name, date of birth, and preferred name.
• Explain the purpose of the conversation and gain consent: “I’ve been told would like to discuss your care today, is that correct?”
• Offer to have family/friends present: they may provide support with decision-making.

Background

Explore their background:

• Events leading up to now: what has happened so far?
• Their current feelings: how are they feeling now?

Explore their understanding and ICE:

• Understanding: what do they know about what’s going on?
• Ideas and concerns: are they worried about anything?
• Expectations: what would they like from this consultation?
• Confirm the direction of the conversation: “I would like to discuss your care and get a better understanding of your perspective. Is that alright?”.

Screening questions

Ask some quick ‘yes’ or ‘no’ screening questions:

• Past medical history: what are their other conditions?
• Past psychiatric history: do they have any mental health conditions?
• Drug history: do they take any regular medications?
• Smoking, alcohol, and illicit drugs: how much and how long?

Psychiatric screening

In some scenarios, a brief mental state examination may be needed:

• Past psychiatric history:
  • Diagnoses: “Can you tell me about your existing mental health conditions?”
  • Duration: “How long have you had these?”
  • Previous admissions: “Have you ever been to hospital before because of them?”
  • Current medication: are they taking anything?
  • Medication compliance: are they taking them as directed?
• Depression screen:
  • Mood, energy, and anhedonia: how are their mood and energy levels, and do they still enjoy things they usually enjoy?
  • Sleep, energy, and appetite: how are these?
• Hallucinations:
  • Visual/auditory: do they see or hear anything when they are alone?
• Thought disorders:
  • Control: do they feel in control of their thought processes?
  • Insertion: do they feel like anyone is inserting thoughts into their head?
  • Withdrawal: do they feel like anyone is taking their thoughts out?
  • Broadcasting: do they feel like others can hear their thoughts?
  • Persecutory delusions: do they feel like others are out there trying to harm them?

Do they understand the information?

You must ensure all the following are explored and addressed, including the risks of serious complications and death. For each of the following, ask what they know to explore their understanding and offer to explain throughout if any gaps arise.

• Likely diagnosis: what do they think is going on?
• Intervention indication: do they know why the intervention is being offered?
• Intervention benefits: do they know the benefits of the intervention?
• Intervention risks: do they know the risks of the intervention?
• Serious complications and death: do they know about any serious or life-threatening complications (including death) that could happen?
• Risks of non-intervention: do they know about the risks of not going through with the intervention?

Can they retain and weigh up the information?

Explore their ability to retain and weigh up the information. It is helpful to normalise and reassure when asking about this so the patient does not feel like they are being singled out. For example, “Just to make sure I’ve explained everything properly, I’d like to check your understanding of this information. This is something we do in all people in these scenarios. Please could you tell me in your own words why we want to do this?”

• Indications: can they tell you again why this was recommended?
• Benefits: can they tell you again what its benefits are?
• Risks: can they tell you again what its risks are?
• Serious complications and death: can they tell you again about any serious or life-threatening complications (including death) that could happen?
• Risks of non-intervention: can they tell you again what the risks of not going through with the intervention are?
• Re-iterate that death could occur.

Can they communicate the decision?

• Communicating the decision: can they tell you what their decision is?
• Clarification: is this their final decision?

Negotiation and compromises

If appropriate, try to negotiate but do not make unrealistic promises. Any negotiation should be based on their concerns – for example, if they need to bring something from home, a relative/friend may be able to bring it for them.

Are there any alternatives? – just because a patient refuses one management step doesn’t mean they are not open to others. Remember these are likely decisions a senior would make. Examples include:

• Treatment at home if stable: such as oral antibiotics instead of IV antibiotics
• Community follow-up: such as their GP or district nurse.
• Period of leave: this needs to be checked with ward rules (e.g. some may have evening curfews or this may not be practical).
• Waiting to try alternatives first: can they wait for the team to get in touch with a specific department first?

You may be given admission details so far (e.g. their observations/vital signs). Use these to guide what alternatives you could offer.

If they agree to any compromises, inform them that you will discuss this with your seniors first. Do not make unrealistic promises.

Summary and concluding

Summarise and clarify what has been discussed:

• Confirm what has been said, including acknowledging the risks: “So to summarise, you would not like to undergo this intervention and know the risks of doing so, including the risk of death?”.
• Stress that the final decision is against medical advice and lies with them.

Check understanding and ICE:

• ICE: has this been addressed/acknowledged?
• Invite them to ask questions: do they have any?

Advise on self-care measures:

• Safety netting: tell the patient what signs and symptoms to look out for and what to do if they arise. Be specific and avoid being vague (e.g. do not say “If you feel worse, come back”, tell them specific scenarios and where to go).
• Preventing problem recurrence/worsening: such as stopping smoking, taking medication as instructed etc. and offering to help with these.

When finishing:

• Senior discussion: inform them that you will have to discuss this with a senior first.
• Offer time to think: if possible, give them time to think about their decision.
• Let them know they can change their mind: remind them that they can get in touch if they change their mind.
• Offer leaflets, early follow-up, and a future contact: such as yourself or another relevant team member.
• Thank the patient and document the discussion.

Examiner Questions

Some possible questions include:

• “Do you feel like this patient has the capacity to consent/refuse this intervention?”
• “If this person lacks capacity, what would you do next?”
• “How is a decision made in someone’s best interests?”
• “If this person needed another intervention, would this capacity assessment allow you to decide?”