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Capacity can vary depending on the decision to be made and from one time to another. The patient may be quite able to decide what they would like to eat but may not be able to decide on whether they go to live in a nursing home or not. Each case must be assessed depending on the decisions to be made. Capacity should be assumed unless proven otherwise.

About

• The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment.
• It applies to people aged 16 and over living in England and Wales.
• It covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, or serious life-changing decisions like whether to move into a care home or have major surgery.
• Examples of people who may lack capacity include those with:
  • Dementia
  • Severe learning disability
  • Brain injury
  • Mental health illness
  • Stroke
  • Unconsciousness caused by an anaesthetic or sudden accident

Algorithm: what tool to use

Using MCA

Five Key Principles

• Principle 1: A presumption of capacity: Every adult has the right to make his or her own decisions and must be assumed to have the capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
• Principle 2: Individuals being supported to make their own decisions.
• Principle 3: Unwise decisions People have the right to make decisions that others might regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.
• Principle 4: Best interests. Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests. A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If a lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
• Principle 5: Less restrictive option Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person's rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the particular circumstances of the case.

Appointment of an Independent advocate

• The MCA also allows people to express their preferences for care and treatment
• They can appoint a trusted person to make a decision on their behalf should they lack capacity in the future.
• People should also be provided with an independent advocate, who will support them to make decisions in certain situations
• Such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.

Capacity

• The MCA says that we must assume a person has the capacity to make a decision themselves unless it's proved otherwise and wherever possible, help people to make their own decisions.
• We should not treat a person as lacking the capacity to make a decision just because they make an unwise decision.
• If you make a decision for someone who doesn't have the capacity, it must be in their best interests treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms

To have "Capacity" the following must be satisfied

• The patient should be able to understand the nature, purpose and effects of the decision to be made
• The patient understands the ramifications of both agreeing or disagreeing with the decision to be made
• Patient can take in relevant information, retain the information, believe it and weigh up the information and using that make a judgement
• Patient can communicate their decision - e.g. a patient who is severely dysphasic may in some ways lose capacity

Assessment: The MCA sets out a 2-stage test of capacity:

• 1. Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?
• 2. Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have the capacity to make others.

Notes

• Mental capacity can also fluctuate with time i.e. someone may lack capacity at one point in time but may be able to make the same decision at a later point in time.
• Where appropriate, people should be allowed the time to make a decision themselves.
• Delay decisions if the potential for improved patient decision making

The MCA says a person is unable to make a decision if they can't:

• Understand the information relevant to the decision
• Retain that information
• Use or weigh up that information as part of the process of making the decision

Making decisions in best interests

• Finding the least restrictive option
• Find out the person's previous and relevant views
• avoid discrimination and assumptions
• Delay any decision if likely to regain capacity

References

• Mental Capacity Act 2005