Experience Summary

In this experience, watch as a doctor assesses the capacity of a patient that the nurses are concerned does not have capacity.

Note that this experience has been developed with a healthcare organisation in Scotland and thus legislation differs slightly from in other parts of the UK, although principles remain the same.

Clinical Context

Assessing a patient's mental capacity is a fundamental part of clinical practice and ensures that healthcare decisions respect patient autonomy while protecting those who are unable to make decisions for themselves. In England and Wales, capacity assessments are guided by the Mental Capacity Act 2005 (MCA), which establishes a legal framework for decision-making on behalf of adults who lack capacity. Capacity is both decision-specific and time-specific, meaning a person may have capacity to make some decisions but not others, and their ability to make a decision may change over time.

Before assessing capacity, clinicians should begin with the presumption that every adult has capacity unless there is evidence to suggest otherwise. Individuals should also be given all practicable support to help them make their own decisions, such as using simple language, visual aids, interpreters, or choosing the optimal time for discussion.

The Mental Capacity Act states that a person lacks capacity if, because of an impairment or disturbance in the functioning of the mind or brain, they are unable to make a specific decision. This is assessed using four key components. The individual must be able to understand the relevant information about the decision, retain that information long enough to make the decision, use or weigh the information as part of the decision-making process, and communicate their decision by any means, including speech, writing, sign language, or other methods.

A capacity assessment should be structured, proportionate to the seriousness of the decision, and clearly documented. Clinicians should explore each of the four elements using open questions and confirm that any inability to decide is directly related to an impairment of the mind or brain rather than poor communication, language barriers, or an unwise decision alone.

In Scotland, capacity is governed by the Adults with Incapacity (Scotland) Act 2000 (AWI). While the underlying principles are similar, the legislation defines incapacity as being unable to act, make decisions, communicate decisions, understand decisions, or retain the memory of decisions because of a mental disorder or inability to communicate. As in the MCA, capacity is presumed unless proven otherwise and should always be assessed in relation to the specific decision being made. The AWI Act is underpinned by five principles: any intervention must benefit the individual, be the least restrictive option, take account of the person's present and past wishes, involve consultation with relevant others, and encourage the individual to use and develop any remaining decision-making skills wherever possible. These principles ensure that adults who lack capacity receive care and treatment that is lawful, proportionate, and centred on their rights and wellbeing.

Learning Outcomes

1. Understand the principles used to assess a patient’s capacity.
2. Observe a capacity assessment.
3. Understand the legalities of capacity assessments in your locality.

External Resources

• Assessing capacity - NHS England
• Mental Capacity Act Code of Practice - GOV.uk
• Adults with incapacity (AWI): forms and guidance - Scottish government