Do you have the capacity?

The Mental Capacity Act impacts every new doctor. Jonathan Haslam describes what it means in practice

The Mental Capacity Act 2005 came into force in England and Wales, but many doctors are still unclear about what it means. The Department for Constitutional Affairs published a comprehensive, 300-page code of practice on the Act, which not all new doctors may have had the time to read. In addition, different legislation applies in Scotland, and none at all in Northern Ireland. Here we try to swap a legal minefield for a concise and practical guide.

The principles

Doctors should presume that adults have the capacity to consent or to refuse a proposed treatment, unless it can be shown that they lack that capacity. Each assessment of an individual’s capacity should  relate to a specific decision. For example, a patient may be incapable of understanding the complex implications of a major procedure, but be quite capable of comprehending the risks and benefits of a simple intervention.

What the Mental Capacity Act did

The Mental Capacity Act (MCA) put these principles into statute law (ie, an Act of Parliament). Previously they had been decided by common law principles (decisions in the courts) and accepted best practice. The Act sets out a test for capacity, which is in two parts:

• Does the person have an impairment or a disturbance in the functioning, of their mind or brain?
• Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?

If the answer is “yes” to both of these questions, then the patient lacks capacity and should be treated in their best interests.

What are best interests?

Best interests will vary depending on the individual and the circumstances – the Act sets out a non-exhaustive list of factors that must be considered. This includes a requirement to consider the patient’s past and present wishes, feelings, beliefs and values. You must also take into account (if it’s appropriate and practical) the views of significant others, such as close relatives or carers. All relevant factors, not just medical ones, must be considered and weighed against each other, in order to ensure that the outcome is the best one for the patient. Even if you decide that a patient lacks capacity that does not mean they should be ignored. Good communication with the patient is still vital.

Assessing capacity

The Mental Capacity Act Code of Practice says that you should not express an opinion on a person’s lack of capacity without carrying out a proper examination and assessment. This might involve meeting the patient more than once, particularly if there are communication difficulties. In certain circumstances a specialist assessment might be required, but in general the assessment consists of conveying information to the 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 that invite “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, instead of “do you understand?” it could be phrased as “tell me what you understand by…” Beginning questions with “What”, “How” or “Tell me” is a good way of framing questions for open-ended answers.

Assessing capacity can be very difficult where the patient suffers from serious communication problems, so employing aids to help them is crucial. Find out what tools the patient normally uses to communicate. If you are unsure about how to help a particular patient, you may need to involve a speech or language therapist, a translator or another professional with special skills or knowledge. It is also important to choose carefully the timing and location of an assessment of capacity. A patient’s ability to understand information might fluctuate during the day, for example, and if the environment is strange or intimidating, again, this may affect their capacity.

Even if a patient lacks capacity, the onus is on health professionals to involve patients as much as possible in decisions that affect their lives.

For more information, read MPS's factsheets on the Mental Capacity Act.

Scotland

In Scotland, the relevant legislation is the Adults with Incapacity Act. An adult with incapacity is incapable of any of the following: 

• Acting
• Making a decision
• Communicating a decision
• Understanding a decision
• Retaining the memory of a decision.

The Act itself does not set out a capacity test, but does say that it “must be judged in relation to particular matters”. The Scottish government offers the following guidance for assessing capacity:

• Does the person have a mental disorder (which includes mental illness, learning disability, dementia and acquired brain injury) or severe communication difficulty because of a physical disability (such as a stroke or severe sensory impairment)?
• If so, has it made the person unable to make the decision or decisions in hand?

Northern Ireland

There is no specific legislation covering mental capacity, so the common law test applies:

• Does the patient comprehend and retain treatment information?
• Does the patient believe that information?
• Does the patient weigh that information, balancing risks and needs, to make a choice?

Advice for new doctors

If you are taking consent you have to be satisfied that the patient has the capacity to understand what you are telling them. If you don’t feel you’re confident to assess the functional capacity of the patient then seek senior advice. This is all part of the training, so don’t worry. Do contact MPS with any concerns that you have. You’re not on your own so don’t be afraid to ask for help.

- Dr Pallavi Bradshaw, MPS Medicolegal Adviser

Treating those without capacity

• If a patient has capacity, then you should not treat them without their consent.
• If a patient lacks capacity, you can treat them in their best interests.
• If you are in any doubt about their capacity, then you should give emergency treatment, but consider carefully, and perhaps consult with more senior colleagues, before giving non-emergency treatment.