Adults have a right to make their own decisions, even decisions which may seem unwise to others. The Mental Capacity Act 2005 is legislation that protects and describes this right and it also safeguards for those who lack capacity. It is actually relatively easy to read for a piece of legislation and has a definition on how you can assess capacity.
The Act contains 5 statutory principles:
- 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 least restrictive of the persons rights and freedom of action.
Any capacity assessment is specific to the decision being assessed and it is specific to that period in time i.e. can they understand on a specific date what a lasting power of attorney means? Can they retain that information long enough to use or weigh that information to help them make that decision and communicate that decision?
(The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him/her from being regarded as able to make the decision.)
As GP’s we are carrying out and referring individuals for treatments and procedures. This should involve making Best Interests Decisions when the person lacks capacity, in conjunction with families, carers paid and unpaid or others acting on the person’s behalf. The Best Interests Decision should be well documented in the persons notes and this process should be followed for each treatment or procedure required.
As GPs we are sometimes asked to assess capacity for a lasting power of attorney. Our advice is that you can do this if you feel competent to do this (and this may vary depending on how well you know the patient). If you don't then suggest a private opinion is sought from a Psychiatrist specialising in Older Peoples Mental Health. If you do feel competent to certify that someone has capacity for a specific decision then you should document this and why you felt they had capacity (i.e. they showed they understood by …..) It is advised that you assess the person on their own so they cannot be seen to be influenced by others.
Assessing mental capacity - this is an easy to read government guide on assessing capacity
https://www.wessexlmcs.com/lunchandlearn - Mental Capacity Act Lunch & Learn