Every adult has the right to make decisions about their treatment and ongoing care but sometimes patients are unable to understand the choice they face or communicate their wishes. In these situations, you must know how to assess the patient’s mental capacity in line with the law and your ethical obligations.
Legal and ethical framework
In England and Wales, the process for assessing capacity is set out in the Mental Capacity Act 2005 (MCA) and the accompanying Code of Practice, while the relevant legislation in Scotland is the Adults with Incapacity (Scotland) Act 2000.
In Northern Ireland the Mental Health Act (Northern Ireland) 2016 received Royal Assent in May this year, but is not yet fully in force. Currently in Northern Ireland common law requires that decisions must be made in a patient’s best interests if the patient lacks capacity.
The GMC’s ethical guidance, Consent: patients and doctors making decisions together addresses patient capacity issues (paragraphs 62-80) and is consistent with the law across the UK.
All adult patients should be presumed to have capacity, unless established otherwise. A mental disorder is not sufficient grounds for deciding that a patient lacks capacity. Nor should you make assumptions based on a person’s appearance, behaviour or because you consider their decisions to be irrational.
Be aware that some people will be able to make simple decisions but may have difficulties with more complex ones; other patients’ capacity may fluctuate depending on their condition. Capacity is decision-specific. The GMC advises in its guidance that you help patients make decisions by giving them time and support and, where it is necessary, an advocate or interpreter.
Your only concern must be the person’s capacity to make a particular decision at the time it needs to be made. The MCA sets out the following two-stage test:
- Does the person have an impairment of the mind or brain or is there some sort of disturbance affecting the way their mind or brain works, whether temporary or permanent?
- If so, does that impairment or disturbance mean the person is unable to make the decision in question at the time it needs to be made?
In order to make the decision, the MCA says the patient must be able to:
- 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;
- communicate their decision by talking, using sign language or other means of communication.
Whatever the outcome of the assessment, keep a careful record of the whole process in the patient’s records. If the decision is borderline, you should consult others involved in the patient’s care, those close to the patient or colleagues with relevant specialist experience.
Ultimately, it may be necessary to obtain legal advice about whether it is necessary to make and application to the Court of Protection for a declaration as to whether a patient lacks capacity and, if they do, whether proposed treatment would be lawful. This may also be required if there is a disagreement about the patient’s capacity or best interests.
Best interest decisions
If the assessment shows the patient lacks capacity, a decision must be made in their best interest. In determining this, you must consider the following relevant factors:
- whether the lack of capacity is temporary or permanent;
- which options for treatment would provide overall clinical benefit for the patient
- which option, including the option not to treat, would be least restrictive of the patient's future choices;
- the patient's past and present wishes and feelings, in particular any relevant written statement made when the patient had capacity;
- the views of anyone the patient asks you to consult, or who has legal authority to make a decision on
- their behalf such as a person with Lasting Power of Attorney. However, they do not have the power to demand specific forms of treatment if they are not clinically necessary or appropriate;
- the views of people close to the patient;
- what you know about the patient’s beliefs and values.
Depending on the magnitude of the decision, it might be necessary to hold a meeting of all the healthcare professionals involved in a patient’s care, anyone in possession of an Lasting Power of Attorney and the patient’s family or close friends.
If the patient does not have any friends or family and there is no one with the legal authority to speak on their behalf, an Independent Mental Capacity Advocate can be instructed to represent them. Again, the discussion and the people involved should be fully documented.
Be aware that this can be a highly sensitive area as the patients concerned are vulnerable. Capacity decisions are finely balanced and can quickly become the subject of disagreements between the healthcare team and the patient’s family.
If you are in any doubt about how to manage the situation, seek advice from an experienced colleague or contact your medical defence organisation.
- Dr Farnan is a medico-legal adviser at the MDU