According to the Mental Capacity Act, a person is said to lack capacity if they are unable to make a decision due to an impairment to mind or brain function. The loss could be temporary or permanent and can apply to only some decisions – with the person in question being perfectly capable of making other decisions.
Doctors may have a person’s capacity problems brought to their attention by friends or family. There may also be pre-existing medical conditions that may cause impairment.
Determining a Patient’s Capacity
If a doctor believes a person to lack capacity, then they must demonstrate it on balance of probability – that the individual is more likely than not to lack capacity. Doctors must not make any assumptions and should record all their decisions clearly.
Before beginning an assessment, doctors should treat all individuals as possessing full capacity. They should then determine
- whether the individual has an impairment or disturbance in brain function or their mind, such as those conditions associated with mental ill health, injury, or substance abuse; and
- if the impairment means that the individual is unable to make a specific decision when necessary, after all reasonable means to help the patient to do so have been exhausted.
Individual capacity may vary over time, and as such, doctors should strive to regularly review decisions regarding patient capacity.
Individuals are only able to make a decision if they
- understand the decision they are required to make, the information surrounding it, and the consequences;
- remember the information they are given for long enough to make the decision, including when using aide-memoires;
- can evaluate benefits and drawbacks when making a decision;
- communicate their decision, even if they require assistance.