Capacity Flashcards
Capacity
Mental Capacity Act
The Mental Capacity Act of 2005 came into force in 2007. It applies to adults over the age of 16 and sets out who can take decisions if a patient becomes incapacitated (e.g. following a stroke). Mental capacity includes the ability to make decisions affecting daily life, healthcare and financial issues.
The Act contains 5 key principles:
A person must be assumed to have capacity unless it is established that he lacks capacity
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success
A person is not to be treated as unable to make a decision merely because he makes an unwise decision
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 his best interests
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
Assessment of capacity
The Act sets out a clear test for assessing whether a person lacks capacity. It is a ‘decision-specific’ and ‘time-specific’ test. An adult can only be considered unable to make a particular decision if:
- He or she has an ‘impairment of, or disturbance in, the functioning of the mind or
brain’ whether permanent or temporary AND - He or she is unable to undertake any of the following
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
d. communicate the decision made by talking, sign language or other means
No individual can be labelled ‘incapable’ simply as a result of a particular medical condition. Section 2 of the Act makes it clear that a lack of capacity cannot be assumed by a person’s age, appearance, or any condition or aspect of a person’s behaviour
Best interests
The following should be considered when assessing what is in someone’s best interests:
1. Whether the person is likely to regain capacity and can the decision wait.
2. How to encourage and optimise the participation of the person in the decision.
3. The past and present wishes, feelings, beliefs, values of the person and any other relevant factors
4. Views of other relevant people
Lasting Powers of Attorney (LPAs)
The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future, replacing the current Enduring Power of Attorney (EPA). In addition to property and financial affairs the Act also allows people to empower an attorney make health and welfare decisions. The attorney only has the authority to make decisions about life-sustaining treatment if the LPA specifies that. Before it can be used an LPA must be registered with the Office of the Public Guardian
Advance decisions
Advance decisions can be drawn up by anybody with capacity to specify treatments they would not want if they lost capacity. They may be made verbally unless they specify refusing life-sustaining treatment (e.g. Ventilation) in which case they need to be written, signed and witnessed to be valid. Advance decisions cannot demand treatment
