Mental Capacity Act

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)

MCA 2005 Code of Practice

  5 statutory principles:

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


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


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)


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)


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