Assessments for capacity must be based on a person’s ability to make a specific decision at the particular time that it needs to be made. Anyone who wishes to make a decision on behalf of someone else is also responsible for assessing their capacity. In particular cases, which for example may involve lifealtering medical decisions, a second opinion may be sought.

The General Pharmaceutical Council’s Guidance on consent lists four requirements for a person to provide informed consent/have capacity. In general, to make an informed decision, the person should be able to:

• Understand the information provided
• Remember the information provided
• Use and weigh up the information provided
• Communicate their decision (by any means).

If an individual fails one or more of these requirements, they are deemed to lack the capacity to make a particular decision for themselves. It is important that the information about a particular decision is conveyed to the person in a way that is tailored to their individual circumstances and needs, even in emergency situations, where possible. This includes:

• Providing all the relevant information the person needs to make an informed decision, including any alternative options
• Presenting the information in a way that is easy for the patient to understand
• Timing discussions when capacity might be restored or improved
• Having discussions in a location where someone might feel more at ease
• Using appropriate types of communication (e.g. simple language, visual aids, non-verbal communication)
• Getting someone else to assist with communication (e.g. family members, advocates, interpreters or support workers).

If someone refuses to be assessed for capacity, it may be helpful if a healthcare professional explains why the assessment is needed and what the consequences of refusal are. However, no one can be forced to undergo the assessment. If a person lacks the capacity to agree to or refuse the assessment, it can usually go ahead, as long as it is in their best interests.

Guidance for everyday use of the Act can be found in the Mental Capacity Act 2005 code of practice, is available here.

Avoiding common pitfalls when assessing capacity

• Never assume that a patient lacks capacity based solely on their age, behaviour, diagnosis, disability, health, beliefs or if they make a decision that you do not agree with
• Never assume that just because a person lacks capacity to make a particular decision on one occasion they lack capacity to make the same decision on other occasions, or a different decision on any occasion
• If you are ever uncertain as to whether someone lacks capacity, you must seek advice from colleagues experienced in capacity assessment and consent, which may include legal representatives.

Have you completed the second and final module in this series on mental capacity?

Part two: Mental capacity and medical treatment