Capacity, as defined by the Mental Capacity Act 2005 (MCA), relates to whether someone has the ability to make a decision on a particular issue.
The fact that someone lacks capacity to make one decision does not mean they lack capacity to make all decisions. An assessment of capacity should thus relate to the specific issue under consideration.
This is all clearly relevant to the issue of a patient’s consent to receive medical treatment.
In relation to consent, Regulation 18 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 (‘the 2010 Regulations’) makes it clear that healthcare providers regulated by CQC must have suitable arrangements in place for obtaining and acting in accordance with the consent of service users, or the consent of another person who is able lawfully to consent to care and treatment on that service user’s behalf, or where this does not apply, acting in accordance with the best interests of the service user.
If a patient can’t make a decision themselves, then certain key principles must be followed before a decision is made on their behalf.
The key principles that underpin the MCA are as follows:
- A person must be assumed to have capacity unless it is established that they lack capacity
- A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision
- Decisions for people without capacity must be made in their best interests
- Decisions for people without capacity should be the least restrictive possible
How this relates to GPs
When GPs see new or existing patients, the MCA requires them to consider a number of points before determining whether a patient has the capacity to make a decision for themselves. They need to consider a) whether the patient understands the information relevant to a decision b) whether they can retain that information c) whether they can use or weigh up that information and d) whether they can communicate their decision by talking or other means.
GPs cannot determine capacity merely by reference to a person’s age or appearance or an aspect of their behaviour which might lead others to make unjustified assumptions about his capacity.
The relevant decision should be delayed if the person might regain capacity at a later stage. If the patient lacks capacity and the GP’s assessment is that they will not regain capacity, or if the decision cannot be postponed, then this needs to be recorded in the patient’s records and their MCA assessment form. CQC inspectors will be looking for evidence of these documents. It is important that any forms which are filled in, and any patient records, are always completed in such a way that it is evident to an inspector that the key principles above are being followed.
If a GP does determine that a patient lacks capacity then they need to ensure that all decisions made on their behalf are carefully recorded and are always made in the person’s best interests. Even if the person lacks capacity, the person should still be involved in decisions. GPs ought to make it clear in their documentation that they have followed any valid and applicable advanced decision by a patient to refuse treatment and what the person’s past and present wishes and feelings and beliefs were. They must take into account the views of anyone named by the patient as someone to be consulted on the matter, anyone engaged in caring for the person, any donee of a lasting power of attorney and any deputy appointed by the Court of Protection. The local authority is responsible for making arrangements to enable independent mental capacity advocates (IMCA) to be available to represent and support persons when decisions in relation to serious medical treatment or provision of accommodation are made. If there is an IMCA, they should also be consulted when making decisions.
All relevant discussions with the above individuals should be recorded and it should be clear from any documentation why any decision reached was in the person’s best interests.
Policies and procedures
Issues relating to mental capacity are also important because of how they affect a practice’s policies and procedures.
It is important for practice managers to have policies in relation to MCA assessments and decisions affecting those that lack capacity. It is also important to ensure that there is adequate training for staff.
All providers registered with CQC must provide appropriate training to staff. Regulation 7 of the 2010 Regulations makes it clear that in a partnership at least one partner must undertake training to ensure that there are the necessary skills available for carrying on a regulated activity. Regulation 23 also requires that employees are also supported by receiving appropriate training.
At Ridouts, we have found that MCA training is something which CQC is particularly targeting at the moment. A CQC Inspector may well ask members of staff questions about the MCA during an inspection. It is therefore important that staff are able to answer questions from CQC inspectors about capacity assessments and best interests decisions under the MCA. It is also important to keep a training matrix containing details of staff training so it is readily available for CQC inspectors. Training on assessing capacity, best interest decisions and advanced decisions is likely to be particularly important. There is also a statutory duty for GPs to have regard to the Code of Practice to the MCA so it is important for Practice Managers to have copies available for staff. It is also important that you can show that staff have attended MCA training from suitably qualified training providers.
Ultimately, the MCA is about ensuring that people are empowered to make decisions for themselves and decisions are made in the best interests of those who lack capacity to make decisions. GPs will be used to these principles because of their professional code of conduct. However, they may be less used to having to demonstrate compliance to regulators, so practice managers may need to take the initiative themselves to ensure that the above steps are taken.