Patients who lack capacity

In medical practice, situations frequently arise where patients are unable to make informed decisions about their care due to a lack of capacity. Understanding how to assess capacity and make decisions in the best interests of these patients is crucial for medical professionals. This guide will outline key concepts and considerations based on principles largely derived from UK guidelines, such as the Mental Capacity Act (MCA) 2005, but the principles can be broadly applicable in various jurisdictions with similar legal frameworks.

Understanding Capacity

• Capacity Definition: Capacity refers to an individual’s ability to make a specific decision at the time it needs to be made. It involves understanding the information relevant to the decision, retaining that information, using or weighing that information as part of the decision-making process, and communicating the decision.
• Assessment of Capacity: Capacity is decision-specific and can vary over time. A patient may have the capacity to make some decisions but not others. The MCA sets out a two-stage test for assessing capacity:
  1. Diagnostic Test: Is there an impairment of, or a disturbance in the functioning of, the person’s mind or brain?
  2. Functional Test: Is the impairment or disturbance sufficient that the person is unable to make the specific decision?
• Presumption of Capacity: The MCA starts with the presumption that every adult has the capacity to make their own decisions unless proven otherwise. It’s essential not to assume lack of capacity based on age, appearance, condition, or behaviour.

Best Interests

• Definition: When a person lacks the capacity to make a specific decision, any decision made or action taken on their behalf must be in their best interests.
• Determining Best Interests: The MCA provides a non-exhaustive checklist for determining what is in a person’s best interests, including:
  • Not making assumptions based on the person’s age, appearance, condition, or behaviour.
  • Considering all relevant circumstances.
  • Considering whether the person will regain capacity and if the decision can wait.
  • Encouraging participation from the individual as much as possible.
  • Considering the person’s past and present wishes and feelings, beliefs, and values.
  • Consulting with family members, carers, and other relevant parties.

Practical Steps in Decision-Making

1. Assess Capacity: For each decision, assess the patient’s capacity.
2. Determine Best Interests: If the patient lacks capacity, any decision must be made in their best interests.
3. Involve Others: Involve family, friends, and carers in the decision-making process, unless it’s not appropriate to do so.
4. Least Restrictive Option: Choose the option that least restricts the patient’s rights and freedom of action.
5. Record Keeping: Document the assessment of capacity, the decision-making process, and the rationale for any decision made.

Advanced Decisions and Lasting Power of Attorney

• Advanced Decisions: Patients may have made advanced decisions to refuse specific treatments in the event they lack capacity in the future. These must be respected if they are valid and applicable to the circumstances.
• Lasting Power of Attorney (LPA): An LPA for health and welfare allows a person (the donor) to appoint one or more individuals (attorneys) to make decisions about their health and welfare on their behalf if they lack capacity.

Ethical Considerations

• Respect for Autonomy: Balancing respect for a patient’s autonomy with the need to act in their best interests is a fundamental ethical challenge.
• Beneficence and Non-Maleficence: Decisions should aim to benefit the patient while avoiding harm.
• Justice: Decisions should be made with fairness and without discrimination.