Overview
Mental capacity is the ability of people to make decisions and understand their consequences. Everyone has mental capacity until proven otherwise.
The Five Principles
- Capacity is assumed:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- People should be helped to be able to decide:
- A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
- People are allowed to be unwise:
- A person is not to be treated as unable to make a decision merely because they make an unwise decision.
- Treat people in their best interests:
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
- Use the least restrictive option:
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Assessing Capacity
Capacity assessment is both decision-specific and time specific:
- The assessment of capacity must be about a particular decision at a particular time, not a range of decisions.
- If someone cannot make complex decisions, this does not mean they cannot make simple decisions. E.g. someone with learning disabilities could make decisions on what they want to eat but may struggle with where they would want to live.
- You cannot decide that someone lacks capacity based on their age, appearance, condition, or behaviour alone.
- This includes scenarios where people may have previously been deemed as lacking capacity. A patient may lack capacity in one procedure but be deemed as having capacity in another.
- E.g. you cannot assume someone lacks capacity based on having a certain medical condition.
When assessing capacity, two questions are asked:
- Is there impairment or disturbance to the function of the person’s brain or mind?
- Is the impairment sufficient enough to constitute a loss of capacity?
If a person lacks capacity, a best interests decision is made. A person does not have capacity if they cannot:
- Understand the information
- Retain that information
- Weigh up that information
- Communicate their decision back
Best Interests
If all methods have tried and failed, and the person lacks capacity, then a decision is made in their best interests. In emergency situations, this can be done by the doctor treating the patient.
In non-emergency situations, best-interest meetings are held:
- This involves the patient and relatives
- Discusses the least restrictive option
- Takes the patient’s previous wishes into account
Deprivation of Liberty Safeguards (DoLS)
There may be times when the only way to treat someone without capacity safely is by depriving them of their liberty e.g. stopping patients from leaving the ward or keeping them under 24-hour care. This only applies if the person lacks capacity, is over 18, and is not detained under the Mental Health Act. DoLS last for 12 months. Most hospitals have people appointed to initiate this process.
Special Situations
- Lasting power of attorney (LPA) for health and welfare
- If the patient lacks capacity and has an LPA for health and welfare, then that LPA should make the decision on their behalf.
- Advanced decisions
- If the patient has a valid advanced decision to refuse treatment, then that must be followed.
- People who lack capacity but do not have friends or family that can be involved in a best interests meeting
- They should be appointed an Independent Mental Capacity Advocate (IMCA) to represent their interests.
