The Mental Capacity Act

When you are well you may be able to make a number of decisions whereas at other times you may be able to make fewer, less complex decisions. During the worst periods of some illnesses thought can be disordered and mood can have an effect on mental capacity, such an instance may include a psychotic episode.

Mental capacity must be assessed at each opportunity when a decision is made.

Guidance provided to doctors by the General Medical Council on informed consent for patients with fluctuating capacity says that doctors should provide any assistance they patient might need to reach an informed decision. This could be the availability of an advocate. The doctor should also refer to any decisions made while the patient was competent and should review capacity to make the decision at appropriate intervals before treatment starts.

How do you know if someone has mental capacity?

All adults (aged 16 or over) are assumed to have the capacity (competence) to make decisions, such as those about medical treatment or disclosure of information, unless there is evidence to the contrary.

There are several tests used to decide if someone has capacity although views differ. The government supports the use of a 'functional' test. A functional approach to assessing capacity recognises that a person's ability to make decisions may vary over time and depend on the level of difficulty of each decision. All practical steps should also be taken to enable a person to make decisions.

A functional approach also means that others should not impose their own values. For example, what may be perceived by some people as an unwise or irrational decision may be the preference of another person and their choice should be respected. This approach allows for a person to make as many decisions as possible. It focuses the person's ability to make a particular decision and allows for situations where a person is able to make some decisions but not others. For example, a person may be able to make decisions about what they want to buy, but not about how to manage their money.

The Law Commission says that someone should be regarded as mentally incapacitated if, at any point in time, they are:

• unable by reason of mental disability to make a decision for him/herself on the matter in question; or
  unable to communicate your decision on that matter because you are unconscious or for any other reason.
  

While Scotland has a Bill (a parliamentary document) that deals with mental incapacity, England, Wales and Northern Ireland do not. In June 2003 a draft Bill dealing with mental capacity was drawn up for the rest of the UK and this is currently under consultation.

The Bill lays out a single definition of capacity that requires capacity to be assessed according to each decision that needs to be taken.

The starting point is always that the person has capacity and the Bill includes the concept of acting in the best interests of someone lacking capacity must guide all decisions. It will provide a common standard around which all interested parties should discuss and agree on how to make a decision for the person who lacks capacity. The Bill will set out a general authority which makes it lawful to act for someone who lacks capacity where it is reasonable for the person taking action to do so and the act is in the person's best interests. The Bill sets out a number of ways in which formal decision-making powers can be acquired or granted.