General advice on 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 their behaviour. The Mental Capacity Act Code of Practice stipulates that 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.
Professionals should never express an opinion on a person’s lack of capacity without carrying out a proper examination and assessment
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 a patient, discussing it with them to gauge their understanding and then asking questions about the salient points to see if they have grasped them.
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 re-phrased as “Tell me what you understand by…” Words like “What”, “How” and “Tell me” are good for framing open-ended questions.
Assessing capacity can be very difficult where patients suffer from serious communication problems, so employing aids to help them is crucial. Find out from those who are close to the patient what means they normally use to communicate and what tools the patient is familiar with. If you are unsure about how best to assist a patient in these circumstances it may be necessary to involve a speech and language therapist, a translator, or other professionals with special skills or knowledge.
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.
Even if a patient lacks capacity, the onus upon health professionals is still to involve patients insofar as is possible in decisions that affect their lives.5
Box 2: The five principles of the Mental Capacity Act
- A person must be assumed to have capacity unless it is established that they lack 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.
Mental Capacity Act 2005, section 1.
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.
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 or, where this is not the case, patients must be treated in accordance with their best interests or according to consent given by someone authorised to act on the patient’s behalf – someone with parental responsibility in the case of a minor, or a person with a personal welfare lasting power of attorney (a welfare attorney in Scotland).
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.