Mental capacity and consent | Dementia Partnerships

In terms of mental capacity and consent:

all adults are presumed to have the capacity to make decisions on their own behalf
exceptions to the obligation to respect the informed decisions of adults include where the decision or action results in a threat of a significant harm to a third party
an assessment of mental capacity is decision-specific: it relates to the specific decision that needs to be made at the time it needs to be made
where there is doubt about an adult’s capacity, a more formal assessment should be made

Establishing mental capacity

If someone is unable to make a decision for themselves at the material time because of an impairment of the mind, then that person can be said to lack the mental capacity to make that decision.

A person is defined as being unable to make decisions for themselves if they are not able to undertake at least one of the following:

understand information given to them
retain that information long enough to be able to make a decision
weigh up the information available to make a decision
communicate their decision by any possible means, including talking, using sign language, or even through simple muscle movements such as blinking an eye or squeezing a hand.

Mental Capacity Act (2005)

Basic principles

A presumption of capacity. Adults are assumed to have the capacity to make decisions on their own unless it is proven otherwise.
Maximising decision-making capacity. Everything practicable must be done to support individuals to make their own decisions, before it is decided that they lack capacity.
The freedom to make unwise decisions. The fact that an adult makes a rash, unwise or impulsive decision is not in itself evidence of lack of capacity.
Best interests. Where it is determined that an adult lacks capacity, any decision or action taken on his or her behalf must be in his or her best interests.
Less restrictive alternative. Whenever a decision is making a decision on behalf of an adult who lacks capacity, he or she must consider if it is possible to make the decision in a way that is less restrictive of that person’s fundamental rights or freedoms.
An assessment of mental capacity is decision-specific: whether and individual has the capacity to make a specific decision at a specific time.
Lasting Power of Attorney: the Mental Capacity Act allows individuals aged 18 or over to appoint an attorney under a personal welfare LPS, to make health and welfare decisions on their behalf once they lose capacity.
Independent Mental Capacity Advocates (IMCA) – under the Act, an IMCA must be instructed in relation to individuals who lack capacity and who have no family or friends whom it is appropriate to consult when,
- an NHS body is proposed to provide, withhold or withdraw ‘serious medical treatment’; or
- an NHS body or local authority is proposing to arrange accommodation, or a change in accommodation, in a hospital or care home, and the stay in hospital will be more than 29 days, or the stay in the care home more than 8 weeks.
Responsibility for instructing an IMCA lies with the NHS body or local authority providing the treatment or accommodation. In some situations where adults require safeguarding local authorities are also able to instruct IMCAs.

For more information go to BMA guidance on the Mental Capacity Act www.bma.org.uk/images/MentalCapacityTookKit (External link)

References

British Medical Association (2011) Safeguarding Vulnerable Adults – A toolkit for General Practitioners, p32. London, British Medical Association. View this document