Assessment of mental capacity

The underlying philosophy of the Mental Capacity Act (MCA) is to ensure that those who lack capacity are empowered to make as many decisions for themselves as possible and that any decision made, or action taken, on their behalf is made in their best interests.

The five key principles of the Act are:

1. Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
2. A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
3. Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
4. Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
5. Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

Assessing mental capacity

Four point test of capacity – the person must be able to:

1. understand the information given to them
2. retain the information long enough to be able to make a decision
3. weigh up the information available to make a decision
4. communicate their decision

Best interests

If a person is deemed to not have capacity to make a decision regarding their health and welfare, a decision can be made on their behalf in their ‘best interests’ except regarding the following circumstances:

• marriage or civil partnership
• divorce
• sexual relationships
• adoption
• voting

The statutory checklist must be consulted. Decisions can be made on the basis of weighing up the advantages and disadvantages of the issue in question, eg. transfer to a specialised rehabilitation facility under the headings of medical, emotional and welfare pros and cons.

Independent Mental Capacity Advocate (IMCA)

In cases where a patient has no one to support them with major decisions an IMCA can be appointed. An IMCA will only be involved in specific circumstances:

1. Where the decision is about serious medical treatment provided by the NHS.
2. Where it is proposed that the person is moved into long-term care involving more than 28 days in hospital (eg. transfer to a spinal injuries unit) or eight weeks in a care home.
3. Where a long term move (more than eight weeks) to different accommodation is proposed, such as care home or nursing home.

Court of Protection

It is essential to check if a patient has a pre-arranged Lasting Power of Attorney under the Court of Protection. These can be for property and affairs and for personal welfare. A Deputy can be appointed to an individual after capacity has been lost through application to the Court of Protection.

Deprivation of Liberty Safeguards (DOLS)

These provide a legal framework to prevent unlawful deprivation of liberty occurring.

The Mental Capacity Act (MCA) DOLs apply to anyone:

• aged 18 and over
• who suffers from a mental disorder or disability of the mind such as dementia, a profound learning disability or brain injury
• who lacks the capacity to give informed consent to the arrangements made for their care and/or treatment
• for whom deprivation of liberty (within the meaning of Article 5 of the European Convention on Human Rights) is considered after an independent assessment to be necessary in their best interests to protect them from harm

The safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements.

The aim is to ensure people can be given the care they need in the least restrictive regimes whilst safeguarding their rights.

One likely scenario when Deprivation of Liberty Safeguards may need to be considered would be in the case of a wandering patient in post traumatic amnesia requiring environmental restraint to prevent harm.

Advance decisions to refuse treatment

An advance decision allows an individual to set out particular types of treatment they do not want should they lack the capacity to decide this for themselves in the future. Advance decisions are legally binding and must be followed by doctors and other health professionals, as long as they meet certain conditions. At the time that the decision is made the person must be over 18 and have the mental capacity to make such a decision. The documents should make clear which treatments are being refused and the document should explain which circumstances the refusal refers to. The doctor needs this information to decide whether an advance decision is valid and applicable to a particular treatment.