Assessing capacity
A person’s capacity, or lack of it, cannot be judged simply on the basis of age, appearance, condition or any aspect of his/her behaviour and professionals should never express an opinion on a person’s lack of capacity without carrying out a proper examination and assessment. This may entail meeting the patient more than once, particularly where there are communication difficulties. Background information from people close to the patient may also prove useful, but their personal views on what should happen must not be allowed to influence the outcome of the assessment.
In certain circumstances specialist assessment may be required, but in general the assessment consists of conveying information to the patient, discussing it with him/her to gauge his/her understanding and then asking questions about the salient points to see if he/she has grasped them.
Frame your questions in such a way that the patient will need to give a fuller response
Avoid asking questions inviting “Yes” or “No” answers – for example, “Do you understand?” Instead, frame your questions in such a way that the patient will need to give a fuller response – for example, the above question could be rephrased as “Tell me what you understand by…” Words like “What”, “How,” “Why,” and “Tell me” are good for framing questions with open-ended answers.
Assessing capacity can be very difficult where the patient suffers from serious communication problems, and in these circumstances it may be necessary to involve a speech and language therapist, a translator, or other professionals with specialist skills or knowledge.
Capacity may fluctuate in the course of a day, so choosing the best time to assess someone is important
Other aspects to consider are the timing and location of an assessment. Capacity may fluctuate in the course of a day, so choosing the best time to assess someone is important. It is also important to be aware of the possible impact of the environment – if it is strange or intimidating, it may inhibit the patient or make him/her tense and agitated.
Box 2: Best interests
A person trying to work out the best interests of a person who lacks capacity to make a particular decision should:
- Encourage the person to take part, or to improve their ability to take part, in making the decision.
- Try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves.
- Try to find out the views of the person who lacks capacity, including:
- the person’s past and present wishes and feelings – these may have been expressed verbally, in writing or through behaviour or habits
- any beliefs and values (eg, religious, cultural, moral or political) that would be likely to influence the decision in question
- any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves.
- Not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour.
- Consider whether the person is likely to regain capacity (eg, after receiving medical treatment). If so, can the decision wait until then?
- Not be motivated in any way by a desire to bring about the person’s death. They should not make assumptions about the person’s quality of life.
- If it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values. In particular, try to consult:
- anyone previously named by the person
- as someone to be consulted on either the decision in question or on similar issues
- anyone engaged in caring for the person
- close relatives, friends or others who take an interest in the person’s welfare
- any attorney appointed under a Lasting Power of Attorney or made by the person.
- When consulting, remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private – so it would not be right to share every piece of information with everyone.
- See if there are other options that may be less restrictive of the person’s rights.
- Weigh up all of these factors in order to work out what is in the person’s best interests.
Mental Capacity Act Code of Practice, pp. 65–6
Consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings
Scenario 1
Mrs N is 86 years old and has had a stroke. Her speech is unintelligible and she dozes much of the time. She suffers a fractured neck of femur in a fall. The staff on the ward explain what has happened and that she needs an operation. Because she is unable to speak, the staff watch her body language intently to gauge her understanding and give her a picture board to help her communicate. Mrs N is able, through these means, to convince the staff that she understands what has happened and that she wants them to carry out the operation.
Even if a patient lacks capacity, there is still an onus upon health professionals to involve patients in as much as is possible in decisions that affect their lives (see Box 3, below).
Scenario 2
Mr M is 82 and usually very lively and alert. However, he has recently become very confused, probably due to a urinary tract infection. He is admitted to hospital where it is noted that he has an irreducible femoral hernia. The surgeons who are called to see him suggest immediate repair to avoid the risk of strangulation, but as Mr M is unable to consent and there is no imminent danger (the hernia is not strangulated), it is decided to wait, in the expectation that he will regain capacity, and then seek consent to surgical repair.
Box 3: Involving patients who lack capacity in decisions
The following advice is taken from the UK’s Mental Capacity Act Code of Practice (2005).
Even if the person lacks capacity to make the decision, they may have views on matters affecting the decision, and on what outcome would be preferred. Their involvement can help work out what would be in their best interests. [There are] a number of practical steps to assist and enable decision-making, which may also be helpful in encouraging greater participation. These include:
- Using simple language and/or illustrations or photographs to help the person understand the options.
- Asking them about the decision at a time and location where the person feels most relaxed and at ease.
- Using specialist interpreters or signers to communicate with the person. This may mean that other people are required to communicate with the person to establish their views. For example, a trusted relative or friend, a full-time carer or an advocate may be able to help the person to express wishes or aspirations or to indicate a preference between different options.
Fluctuating capacity
Some patients are intermittently or temporarily unable to make a decision for themselves. It may be possible to wait until the patient has capacity, but if this is not an option, treatment may be provided to preserve the patient’s life or health2 or, if the patient is under the age of 18, with parental consent.