Assessing capacity

Question 1

3 basics of legal capacity

Answer 1

All adults are presumed to be capacitous

Assessments should only be carried out where there is legitimate doubt about a patient’s capacity NOT simply because a patient disagrees with a clinician.

Criteria contained within Mental Capacity Act 2005 are used to assess capacity and this is a general clinical skill (…. not just psychiatry skill !)

Question 2

Can capacity change over time?

Answer 2

Yes

Question 3

3 things the patient must be able to do to have capacity

Answer 3

comprehend and retain

believe (capacity to believe the information provided not actual belief); and

weigh in the balance information such as to make a considered decision

Question 4

2 key features of the MCA 2005

Answer 4

affords statutory validity to advanced directives

provides for power of attorney on behalf of incapacitated adults

Question 5

Key principles of the MCA 2005

Answer 5

Every adult has the right to make his/her own decisions and must be assumed to have capacity to do so unless it is proved otherwise

Everyone should be encouraged and enabled to make his/her own decisions, or to participate as fully as possible in decision-making, by being given the help and support s/he needs to make and express a choice

Individuals must retain the right to make what might be seen as eccentric or unwise decisions

Decisions made on behalf of people without capacity should be made in their best interests, giving priority to achieving what they themselves would have wanted

Decisions made on behalf of someone else should be those which are least restrictive of their basic rights and freedoms.

Question 6

Criteria for capacity in MCA 2005

Answer 6

For the purposes of the Act, a person is unable to make a decision for himself if he is unable to:

(a) understand the information relevant to the decision
(b) retain that information
(c) use or weigh that information as part of the process of making the decision, or
(d) communicate his decision (whether by talking, using sign language or any other means).

Question 7

Options for maximising capacity include

Answer 7

appropriate timing and location
treating inhibiting conditions
diagrams
educational models
videos and audio
translators and interpreters
time

Question 8

What to do when a patient is not capacitous

Answer 8

Is there a valid Lasting Powers of Attorney [LPA] or advance decision?

Treat in patient’s best interests (construed holistically and not limited to best medical interests) on the basis of ‘necessity’

Is there anyone who can advocate the patient? (Note the role of the Independent Mental Capacity Advocate [IMCA] Service)

Document all assessments and rationale for conclusion/decisions

Question 9

What are best interests?

Answer 9

The legal concept of best interests (S.4 in MCA) puts weight on

• patients’ past and present wishes and feelings (including any written statements)
• beliefs and values that would be likely to influence his/her decisions
• other factors that the patient would be likely to consider

including the views of proxy decision makers