Mental capacity: an ethical conundrum

Fact sheet
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British Geriatrics Society
Date Published:
09 March 2010
Last updated: 
09 March 2010

“Does the patient have capacity, doctor?” How often do you hear that question - from nurses, social workers or even surgeons (but usually only when the patient has refused consent for a procedure)?

My standard reply, “Capacity for what?” is often enough to cause doubt. I follow up with “What is the decision to be made?” or “Do we have any valid reason to doubt capacity?” Again this seems to cause some confusion.

The medico-legal concept of capacity arises from the principle of autonomy which then led to the development of the doctrine of informed consent. The three stage test for capacity (understanding and retaining information, believing it, and weighing it up to make a choice) was established in case law by Thorpe J in Re C (1994).

Then, after a long time in gestation, came the Mental Capacity Act 2005 (MCA), which built on case law and gave statutory definition to five important guiding principles around respect for individuals and their choices: that there is a presumption in favour of capacity; that patients should not be discriminated against on the basis of age, disability, appearance or because their decision appears foolish; that everything possible should be done to help an individual make their own decision; that decisions made on behalf of an individual who lacks capacity for that decision should be done in their best interests; and that the least restrictive option should be chosen.

Yet in practice the Mental Capacity Act seems to have been reduced to a fixation on whether capacity has been assessed with less regard for the other major principles of the Act. Recently, I was asked (or rather told) to do a formal capacity assessment for a continuing healthcare funding application done by the multi-disciplinary team on behalf of a patient. The Primary Care Trust (PCT) involved was refusing to assess the application until the medical team provided a written assessment of capacity.

So I asked the same three questions. Question 1: “Capacity for what?” Answer given: “Capacity to understand that a CHC funding application is being made on their behalf”. Question 2: “What is the decision they have to make?” Answer: “Should they consent to the application for funding being made?” Question 3: “Do we have any valid reason to doubt their capacity i.e. is there any evidence of impairment or disturbance of function of the mind or brain?” Answer: “I don’t know”. So I then asked “How did the PCT know they needed a formal capacity assessment?” Answer: “I don’t know but we can’t process the application and the patient will remain in hospital blocking a bed until you sort this out.”

How did this happen and who does this bureaucracy serve? I cannot see how this serves patients’ interests. In my view the PCT is doing this to protect itself from a future financial claim. But there is a flaw in their process; because there is a very important decision to be made by or for the patient about where and how care will be provided for them. This is what we as health and social care professionals should be most interested in. What are the patient’s wishes and needs and how can we best meet them? In this context an assessment of capacity may well be necessary; if there is any evidence of impairment or disturbance of the mind or brain but not otherwise.

Secondly why has the assessment of capacity become medicalised? The MCA code of practice does not limit the assessment of capacity to medical professionals; in fact it states quite clearly that the decision maker or responsible professional is responsible for the capacity decision. My interpretation of this is that doctors should assess capacity for medical treatments and investigations, nurses should assess capacity for nursing interventions and social services should assess capacity for decisions around place of discharge and care needs as they are the decision makers. Medical advice may be necessary for stage one of the test but stage two requires the professional to assess understanding and weighing up of the information required to come to a decision.

Often when I have been asked to assess capacity for discharge, little or no information has been provided on the alternative courses of action and the risks and benefits to the individual. What are the risks to the individual if they remain in their own home, what evidence is available that they lack safety awareness, what can be done to minimise risks, why will they be safer in 24 hour care? Why am I, the hospital consultant best placed to assess their understanding and comprehension of these facts? Why can it not be done by an occupational therapist whose core skills are about assessing function and risks, or the social worker who ultimately decides what will happen to the patient?

I would urge you to require other professionals to become more involved in the assessment of capacity. Locally we have provided practical training for occupational therapists. This has resulted in capacity assessments being completed in optimal conditions for the patient (often on home visits). The occupational therapists are skilled in assessing function and evaluating risks, they take time to explain carefully and to demonstrate all the relevant information to the patient, and their documentation is clear. The training has had the added benefit of making them less paternalistic and risk adverse.

Finally I suggest that doctors should question the need for an assessment of capacity and I would question your responsibility to provide it for non medical decisions.

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