Assessing whether a patient has capacity
It is incredibly important that we assume that a patient has capacity to make a decision unless it is shown and justified that they do not. Furthermore, the burden of proof that a patient lacks capacity lies with the clinician who is treating the patient. It is also important to note that the patient only needs to have the capacity to make the decision in question at a certain time as stated in the MCA:
“For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
“It does not matter whether the impairment or disturbance is permanent or temporary.”
If, however, we think a patient does not have capacity we then have to assess whether or not this is the case. Mental capacity assessments have two aspects to them.
The Diagnostic Test - whether P is ‘unable to make a decision for’ themselves.
The Functional Test - is that disturbance due to ‘an impairment of the mind or the brain’
The Diagnostic Test:
The Mental Capacity Act Code of Practice Document - (Mental Capacity Act Code of Practice - GOV.UK) - sets out clearly what is required in the functional test of the two stage mental capacity assessment:
“4.11 Stage 1 requires proof that the person has an impairment of the mind or brain, or some sort of, or disturbance that affects the way their mind or brain works. If a person does not have such an impairment or disturbance of the mind or brain, they will not lack capacity under the Act.
4.12 Examples of an impairment or disturbance in the functioning of the mind or brain may include the following:
• conditions associated with some forms of mental illness
• dementia
• significant learning disabilities
• the long-term effects of brain damage
• physical or medical conditions that cause confusion, drowsiness or loss of consciousness
• delirium
• concussion following a head injury, and
• the symptoms of alcohol or drug use.”
It is again important to note that this lack of capacity may be temporary or permanent. For example, if a patient presents to you who is lacking capacity due to alcohol use, once the effects of the alcohol have worn off they will then regain their capacity. In some cases, if you know the patient will regain capacity it will be wise to defer making any healthcare decisions if possible or in emergency cases choose the least restrictive treatment.
The Functional Test:
Once the above test is completed we need to consider whether a patient has capacity to make decisions for themselves. The MCA states:
“(1)For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a)to understand the information relevant to the decision,
(b)to retain that information,
(c)to use or weigh that information as part of the process of making the decision, or
(d)to communicate his decision (whether by talking, using sign language or any other means).
(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a)deciding one way or another, or
(b)failing to make the decision.”
Tips for making a mental capacity assessment:
Make sure that you are clear on the capacity decision being made by the patient.
Make sure that you are clear on the specific details and information regarding the choices available to the patient.
Identify the relevant features that the patient needs to understand.
If you do not believe a patient has capacity to make a decision you must identify and document why the patient could not:
Understand.
Retain.
Use/Weigh up the information given.
Communicate the decision in spite of any help/assistance given.
Make sure that the patient's ability to decide has been promoted as much as possible.
Why does this decision represent an incapacitated one vs an unwise one? Does the patient have a temporary or permanent impairment or disturbance and how has this affected their ability to make a capacitous decision in regards to your findings in step 4?
It is incredibly important that you identify exactly which conditions are met or unmet in regard to the MCA when assessing capacity and that these are documented clearly in the patient notes. If there is any doubt it is advisable to contact your indemnity, hospital ethics board, senior colleagues or escalate your concerns further if necessary.
It is also important to note that every effort should be made to help the patient make the decision themselves if it is possible. This should include tailoring and adapting communication if necessary and involving others if required. I would very much recommend reading the Code of Practice Chapter 2,3 and 4 for a detailed overview of capacity assessment.
Resources:
The Mental Capacity Act 2005 - Section 2 and Section 3
The Mental Capacity Act 2005 Explanatory Notes - Section 2 and Section 3
The Mental Capacity Act Code of Practice (Chapter 2+3+4)
http://www.39essex.com/wp-content/uploads/2016/08/Capacity-Assessments-Guide-August-2016.pdf
https://www.gmc-uk.org/Mental_Capacity_flowchart/assets/pdf/case-studies
http://www.legislation.gov.uk/ukpga/2005/9/contents
https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
http://www.mentalhealthlaw.co.uk/Main_Page
https://www.scie.org.uk/files/mca/directory/bild-poster.pdf?res=true
https://www.medicalprotection.org/uk/articles/assessing-capacity
https://www.themdu.com/guidance-and-advice/guides/assessing-capacity