Skip to main content

This is a challenging subject and can be daunting to many healthcare professionals, however, it is important to assist and promote decision making within healthcare.

The Mental Capacity Act 2005 has been in use in England and Wales since 2007, this legislation, aims to help protect people who cannot make a decision at a specific time, due to an impairment of, or disturbance in the functioning of the brain.

Remember, that the impairment or disturbance could be partial or temporary. A lack of capacity could be due to:

  • a stroke, brain injury
  • mental health problem
  • dementia
  • a learning disability
  • confusion, drowsiness or unconsciousness because of an illness of the treatment for it
  • substance misuse

So, what may make you question a person’s capacity? 

  • Their behaviour or circumstances make you doubt whether they have capacity to make a decision
  • Someone else, such as a family member, has raised a concern about that person’s ability to make a decision
  • That person has been diagnosed with a condition that can cause an impairment and it has already been shown that they lack capacity to make other decisions.

There are five key principles that underpin the Mental Capacity Act 2005, principles 1-3 support the process before or at the point of determining whether someone lacks capacity. Principles 4-5 support the decision-making process, once you have decided that the person is lacking capacity.

Principle 1: A presumption of capacity

You must always be of the opinion that everyone that comes to your clinic or pharmacy, has capacity, it is not unless they make you question that assumption, that capacity becomes an issue.- A  person’s capacity should not be based on , their age, the clothes they are wearing or their condition.

Principle 2: Individuals being supported to make their own decisions

Make sure all help has been given to assist the person to make their own decision. Such as using videos, demonstrations to support the person to make their decision. If you believe the person lacks capacity, you must still include them in the decision-making process, so they feel involved.

Principle 3: Unwise decisions

Even if the person makes a decision which you consider as unwise or eccentric, then you cannot state that the person is lacking capacity, just because you do not agree with the decision they have reached. Respect of other people’s values, beliefs and preferences is important in regards to this principle.

Principle 4: Best interests

It goes without saying that anything done for or on behalf of the person lacking capacity must be done in the best interests of that person.

Principle 5: Less restrictive options

You must consider if there is a way that would interfere less with a person’s rights and freedoms of action, or if there is a need for them to make a decision. Each case is individual, and any intervention should be weighed up.

It may be that someone who has a temporary disturbance can be rescheduled for another appointment at a time where they will have capacity.

There is a two- stage test to assess capacity, you must answer the following questions:

  1. Is there an impairment or disturbance that affects the functioning of a person’s mind or brain? If so,
  2. Is the impairment or disturbance sufficient that the person lacks capacity to make a particular decision?

The Mental Capacity Act 2005 states that a person is unable to make their own decision if they cannot do ONE or more of the following:

  • Understand information given to them
  • Retain that information long enough to be able to make a decision
  • Weigh up information available to make the decision          
  • Communicate their decision – this includes verbal communication but could also be sign language, or simple muscle movements such as blinking of eyes or squeezing of a hand.

Once you have made a decision in regards to your patients capacity, you need to document your findings and how you have come to this decision.

Written by Lisa Humble ( ECG Clinical Development Manager), Friday 02/10/2020