Regional Training -April 2014 Mental Capacity Act
Notes by Greg Cranston
Disclaimer: Summary of key points only. This is intended to supplement your own work on these curriculum items and not provide a complete evidence base on which to change your practice. Note the Mental Capacity Act 2005 applies only to England and Wales.
(CC17 – Principles of medical ethics and confidentiality / CC18 – Valid Consent)
o Capacity assumed unless established that they lack it
o An unwise decision doesn’t mean unable to make decision
o Must take all practicable steps to help person make decision, before deeming unable
o Any decisions/actions under act must be made in best interests
o Aim for options least restrictive of person’s rights and freedoms whilst achieving satisfactory outcome
- 2 stage capacity test:
o Is there an impairment / disturbance in functioning of mind or brain?
o Does that impairment make them unable to make a specific decision?
- They must UNDERSTAND the information
- RETAIN the information (keep as restricted as possible)
- USE and weigh the TRUE information
- COMMUNICATE the decision
o Test responses to yes/no with absolute answers
o Challenge responses for information given
The person to assess capacity is the person who will be acting on the decision
- It is all about “reasonable belief”, “reasonable steps”, “best interests” rather than absolute certainty
- “Best interests”
o Individual to a patient. Consider all relevant circumstances including urgency
o Make effort to enable someone to take part even if lacks capacity o If likely to regain capacity, delay non-urgent decisions
o Life-sustaining option must be included, unless palliative option appropriate
o Consider past/present feelings, beliefs, values + views of those close to pt
Documentation
o Detail in the notes
o 2 stage capacity assessment form / consent form 4 – only for significant interventions or decisions. Not required for basic care including blood tests
o ‘Consent’ can only be written if pt has capacity, or by power of attorney, otherwise it is ‘best interests in someone lacking capacity’. Family cannot consent
Resuscitation
o Futility vs. Best interests -> one OR other on DNAR
o Futility is clinical judgement only, make sure to communicate it well
o Avoid judgements of best interests which are not thought out (e.g. learning difficulties)
Restraint
o Only to prevent risk of harm, must be proportional in those w/out capacity
Advanced Decisions
o Only to decline treatments
o Not to request tx, but can make statements of feeling
o Written / signed / witnessed
o Must be applicable to current situation and valid: have they ever gone against the decision? Have they withdrawn it or conferred power to attorney? Would decision have changed if known more current info?
Lasting Power of Attorney (PoA)
o Is for personal welfare / property / affairs – it doesn’t necessarily mean they have decision making power on life/death decisions. *See the document*
- Enduring PoA – No authority for healthcare decisions
- PoAs are registered with the Office of the Public Guardian, which also supervises deputies and provide info and guidance. They can search their registers.
Court of Protection
o Declarations of capacity, financial/welfare matters
o Appoint deputies
Independent Mental Capacity Advocates (IMCAs)
o For support in those lacking capacity, and unbefriended. Unpaid.
o Compulsory: (however urgency can justify not needing in ED)
- For serious medical treatment
- For accommodation / residential decisions
- In hosp > 28 days
Further Information:
The MPS have a series of Factsheets on Mental Capacity Act
MDU also have information on Mental Capacity Act
The BMA have a Mental Capacity Toolkit available for use
And lastly put it all together with a case history and management by Natalie May (note although in the case it discusses oral methionine TOXBASE now recommends oral N-acetylcysteine)
Severn Emergency Medicine 2014 
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