Healthcare providers have a statutory obligation to ensure that they train both their nurses and carers adequately. One of the areas which you need to be trained on as a carer is consent. And that is where the Mental Capacity Act 2005 and the Code of Practice that underpins this come in.
Capacity, as defined by the Act, relates to whether someone has the ability to make a decision on a particular issue or not.
A person must be assumed to have capacity under the Act, unless, following an appropriate Mental Capacity Act (MCA) assessment, they are deemed not to have it in relation to a particular area.
Even if they do not have capacity, all steps should be taken to involve the person as much as possible. For example, if the decision relates to their resuscitation status, it should be assumed that a patient is capable of making a decision on this unless they lack capacity in this particular area, in which case a doctor will liaise with the next of kin or those with power of attorney before making a decision in relation to this.
Decisions made on behalf of someone who lacks capacity must also be in their ‘best interests’. So a MCA assessment ought to record discussions between nurses, doctors and the next of kin (or designated individual with a power of attorney) and why the decision reached was in the person’s best interests.
You may have concerns about someone’s capacity even though they have not received a formal diagnosis.
You might find that a person has capacity in relation to one thing, but not in relation to another. For example, a person may be able to make decisions about what they would like to eat, but may not be able to make decisions about whether they want to be resuscitated or not.
So what are the practical implications of all this?
Here are seven key points which may help you take the appropriate practical steps when providing care:
- Assume someone has capacity unless there has been an assessment which has concluded otherwise. Unwise decisions do not necessarily mean capacity is lacking.
- When you take on someone’s care, make sure you know whether they lack capacity or not and in which area(s). The MCA assessments will tell you this and these should also be reflected in the care plans you follow.
- Try to involve the person as much as possible even if they do lack capacity.
- The decision must be the least restrictive of their freedoms and must be taken in their best interests. This includes taking account of their past and present values and wishes.
- Speak to nurse colleagues if you think a MCA assessment or care plan needs to be updated or a new one needs to be drafted in a particular area. Remember that capacity may change, particularly if someone changes their medication regime or deteriorates.
- Satisfy yourself that you have done the necessary training. Because you have a legal obligation to know about mental capacity, it is a focus for regulators as well as staff.
- The Care Quality Commission Inspector may well ask you questions about the Mental Capacity Act. It will be important for you (and your employer) that you are able to answer questions about capacity assessments and best interests decisions under the Mental Capacity Act.
