Psychiatric Bulletin (2007) 31: 304-307. doi: 10.1192/pb.bp.106.011353
© 2007 The Royal College of Psychiatrists
Assessment of mental capacity: a flow chart guide
Michael Church, Consultant Clinical and Neuropsychologist
Older Adults, Coventry and Warwickshire Partnership Trust, Royal
Leamington Spa Rehabilitation Hospital, Heathcote Lane, Leamington Spa, CV34
6SR, email:
michael.church{at}swarkpct.nhs.uk
Sarah Watts, Chartered Clinical Psychologist
Older Adults, Coventry and Warwickshire Partnership Trust, St
Michael’s Hospital, Warwick
Declaration of interest
None.
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Introduction
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The Mental Capacity Act 2005 provides a new legal framework within which
health and social care professionals (as well as informal carers) must act
when providing care and treatment for the estimated 2 million people in
England, Wales and Northern Ireland who lack the capacity to make certain
decisions for themselves. Although the Mental Capacity Act 2005 Code of
Practice provides comprehensive advice on good practice in assessing capacity,
it does not identify a specific process to be used. Good clinical practice
depends on the exercise of clinical judgement within a valid and contestable
process. This article outlines a flow chart
(Fig. 1) that can be used to
guide the process of capacity assessments in more complex cases, in line with
the Mental Capacity Act 2005 and the Code of Practice.
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Impairment/disturbance in functioning of mind/brain
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The ‘assumption of capacity’ is the overriding principle of
capacity assessment. This states that a person is deemed to have capacity
unless it is proved that they have an impairment or disturbance of mental
functioning (such as an intellectual disability, dementia or other cognitive
impairment, acquired brain injury or mental illness) and this impairment is
sufficient to affect their capacity to make a particular decision. Clinicians
should assess and diagnose such impairment before assessing capacity. The Act
preserves the right of individuals without such impairment (and those with
impairment who have capacity for the decision in question) to make unwise or
risky decisions, and it is emphasised that lack of capacity cannot be
attributed simply because of appearance, condition, age, religious or cultural
beliefs, and eccentric or idiosyncratic behaviour.
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Doubts raised about the capacity to make particular decisions
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Once an impairment or disturbance of mental functioning is detected, a
clinician should be aware of the likely impact on capacity. Thus, certain
factors are more predictive of lack of capacity than others, for example the
presence and severity of cognitive impairment (including lower scores on the
Mini-Mental State Examination; MMSE;
Folstein et al, 1975),
diagnoses such as psychosis and bipolar disorder, and presence of delusions;
other factors, such as degree of psychopathology and age show a less
consistent relationship (Cairns et
al, 2005; Jeste &
Saks, 2006). There is considerable heterogeneity within diagnostic
groups, and factors (such as cognitive impairment) that have the most
significant association with impaired capacity explain no more than 25% of the
variance (Jeste & Saks,
2006). With this in mind, clinicians should consider routinely
using simple open-ended screening questions to detect reduced capacity, for
example ‘why might it be difficult for you to manage safely at
home?’ for placement decisions, and ‘what is this treatment
about?’ for treatment decisions. Palmer et al
(2005) have shown such an
approach to be effective for screening for capacity to consent to
research.
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Identify and clarify decisions to be made
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Capacity is decision-specific, therefore lack of capacity can relate to any
area of decision-making and may affect some decisions but not others in a
particular decision area (reflecting changes in complexity of the decisions).
For example, a person may retain capacity to manage their medication on a
daily basis but may not have the capacity to decide whether to undergo a
surgical procedure. It follows that careful specification of the decision in
question is the basis on which a properly supported process can be used and a
valid capacity assessment made.
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Properly supported process enables person to make the decision in question
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Within the Mental Capacity Act 2005, if a ‘properly supported
process’ is sufficient to enable the person to make the particular
decision, they are assumed to retain capacity (although vulnerable).
Therefore, clinicians are required to take ‘all practicable steps’
to support decision-making. The main areas mentioned in the Code of Practice
include: providing all relevant information (including simplifying
information, outlining benefits and risks, considering effects on others);
enhancing communication; and making the person feel at ease (considering, for
example, location, timing and support from others). Research has identified a
number of ways for enhancing capacity including: education
(Lapid et al, 2004);
multiple learning trials with corrected feedback
(Wirshing et al,
1998); and enhanced structure using computer-based presentations
(Dunn et al, 2002). In
line with this research, there is scope for ward-based procedures to be
developed to both support and evaluate level of independence in specific
decision-making areas when preparing for discharge, for example a graded
self-medication procedure for in-patients receiving stroke rehabilitation.
Finally, it is noted that careful attention should also be given to written
materials such as consent forms, which can be improved by use of structure and
uniformity, shorter sentences and words, and simplified or illustrated formats
(Dunn & Jeste, 2001).
If a properly supported process does not enable the person to make the
particular decision, a ‘capacity assessment’ is required. All
those taking some action on behalf of those in their care will be expected to
be able to assess capacity. This will often be a relatively informal,
straightforward process (for example for relatives and carers), in which a
‘reasonable belief’ of lack of capacity when acting for someone is
enough to provide statutory protection.
The more serious the decision, the more formal the assessment required, and
an explicit or formal process, such as that suggested next, should be
considered under certain circumstances, for example if the decision involves a
significant life change (such as placement decisions), in legal decisions
(wills and advanced decisions regarding withholding treatment etc.), and with
complex cases (for example where professionals, the person or different family
members disagree). Risk is another trigger, for example where a treatment or
study has more than a minimal risk, if there is a risk of harm by making or
not making particular decisions, and where there is risk of, or actual harm or
exploitation by others. A formal process might also be considered in research
protocols where a proportion of potential participants might be expected to
lack capacity.
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Decide what evidence is necessary for a proper test
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The patient and their significant others will be able to provide critical
information regarding the decision to be made. Specialist opinions may be
required, such as from a psychiatrist, other medical specialists with relevant
expertise, a clinical psychologist or neuropsychologist. Detailed
neuropsychological assessment is of particular value in identifying those
types of cognitive impairment, such as dysexecutive syndrome, that may not be
detected with standard orientation or psychiatric screening tests (such as the
MMSE), but often have a significant impact on capacity
(Kim et al, 2002).
Objective and relevant evidence about a person’s functional abilities
and behaviour from other health professionals is also important, for example
occupational therapists, physiotherapists, nurses and dieticians, and can be
used to identify a mismatch between what is said and actual behaviour,
reflective of impaired capacity.
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Gather and document evidence
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Information gathered should be documented carefully and specifically, as it
must withstand the scrutiny of independent audit. The validity and reliability
of evidence will need to be considered, as it may be affected by a number of
factors, for example the level of knowledge and understanding about the mental
impairment, the nature of the decision to be made and any vested interests of
those providing information.
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Make a decision-specific test
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A number of assessment instruments are available for assessing capacity in
treatment and research settings (Dunn
et al, 2006). Although useful, these are not a substitute
for a clinical interview (and clinical judgement) which is necessary, not only
to allow the requirements of a legal test of capacity to be met but also to
test the potentially wide range of decisions necessary, provide properly
tailored support and enable consideration of relevant evidence such as
previous actions and observed behaviour (such as in activities of daily
living). The clinical interview must test the person’s ability to meet
all four criteria of capacity defined in the Act. A person has capacity in
relation to a specific decision if they:
- understand the information relevant to the decision
- can retain the information, even if only for short periods
- can use or weigh the information relevant in the decision-making process,
including seeing both sides of the argument and being able to make a decision
one way or the other
- can communicate their decision by talking, using sign language or another
form of communication understood by others.
It is important to provide full support (during, or in additional, clinical
interviews) before it is decided the person lacks capacity, and to tailor this
support to try to remedy any problems identified in these four criterion
areas. These will be briefly considered next. Providing relevant information
is central to supporting understanding, but even when this is given, a person
may fail to understand if they do not believe this information (for example
the person continues to believe they are eating or drinking sufficiently to
remain healthy, when objective evidence demonstrates this is not so). If
support in the form of corrective information fails, then under some
circumstances a behavioural experiment may be instituted to enable erroneous
beliefs to be tested and gently challenged. However, the supported process and
assessment must always be consistent with the principles of the Mental
Capacity Act 2005. For example, as a result of religious, cultural or
idiosyncratic personal belief, a person may make an unwise/risky decision that
is at odds with the clinician’s view, and the right to do this is
protected. Such situations must be handled sensitively, assessing and
supporting the person’s level of understanding of the risks arising from
a particular decision based on a belief (such as refusal of certain medical
interventions), and respecting this decision if some appreciation of the risks
is shown. If no appreciation of the risks is shown for this decision then the
person should be regarded as lacking capacity, but it is noted that any
decisions or actions taken on their behalf will still need to take account of
the individual’s beliefs (under the best interests’
principle).
If the person is unable to retain information, then memory aids such as
diaries, video and voice recorders may be useful, and if the decision made is
forgotten the person can still be found to have capacity if, when taken
through the same process on subsequent occasions, they come to the same
decision. Difficulty in using or weighing information may be reduced by
simplifying choices, for example developing two alternative scenarios that
omit detail but identify all the important benefits and risks. However, if the
person cannot choose between these even with proper support, they will fail
the test of capacity. Lack of capacity as a result of inability to communicate
is relatively less common and joint assessment with speech therapists is
recommended when the ability to meet this criterion is in doubt.
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Decide and document basis for decision
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In the Mental Capacity Act 2005 a decision about whether or not the person
has capacity must be made on the balance of probabilities. Thus, for example,
if the weight of the evidence is 49–51% that the person has capacity
then it must be decided that they do, and vice versa. The decision made may
have certain limits, for example for patients with illnesses with fluctuating
course, such as vascular dementia, where on one occasion they may be able to
make the decision and on another may require a supported process or lack
capacity regarding that decision. Other situations may include time
limitations in an illness that may improve, and how to support vulnerable
adults through the process. Again, the documentation must stand up to
independent scrutiny.
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Repeat test as necessary
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Given the limits of the decision taken, the capacity test will need to be
repeated as required. This will be every time a doubt is raised about a
person’s capacity to make a particular decision, if their illness
changes in any way, if a significant time period has lapsed since the previous
assessment, or if the treatment or protocol has a long time period with a risk
of delayed side-effects (such as with antipsychotic medication).
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Take action on basis of outcome of test of capacity
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Any decision made must be in the patient’s best interests, ensuring
the statutory checklist is always taken into account. The Mental Capacity Act
2005 Code of Practice checklist includes the following areas:
- equal consideration and non-discrimination
- considering all relevant circumstances
- regaining capacity
- permitting and encouraging participation
- special considerations for life-sustaining treatment
- the person’s wishes and feelings, beliefs and values
- the views of other people.
The decision should involve the patient, their relatives and if required, a
mental capacity advocate, and should be the least restrictive solution
possible. The decision should be communicated to the relevant parties –
the patient, their relatives and other professionals involved in their care,
including health, social services and voluntary agencies – so that
appropriate action can be taken. Circumstances under which seeking a second
opinion should be considered are if the person, family or advocate, disagree
with the assessment, and in cases where substantial consequences result from
the outcome and there was only a small margin of error in the assessment
(Buchanan, 2004).
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Discussion
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Clinicians assessing capacity must be able to demonstrate that they are
familiar with, understand and have followed the Mental Capacity Act 2005 Code
of Practice. Although certain issues, such as how to protect people who lack
capacity, not under compulsion but deprived of their liberty, have yet to be
finalised under the Mental Capacity Act 2005 and proposed Mental Health Act
1983 amendment, we trust that the flow chart will facilitate good practice,
providing a guide to the process of assessing capacity in more complex
cases.
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Acknowledgments
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We thank Rachel Warner for her assistance with formatting this paper.
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References
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Introduction
Impairment/disturbance in...
