Assessment of capacity

General Medical Council Interactive Decision tool to support decision making when patients may lack capacity

MCA 2005 Factsheet by MPS

Mental Capacity Act 2005

The Mental Capacity Act states that a person lacks capacity if they are unable to make a specific decision, at a specific time, because of an impairment of, or disturbance, in the functioning of mind or brain. 

An adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) unless it can be shown that they lack capacity to make a decision for themselves at the time the decision needs to be made

Lacks capacity means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken (decision-specific and time-specific)

  1. Step 1. Maximise capacity
    Start from the presumption that your patient has capacity to make the decision.
    To maximise their capacity: optimise communication (written or audio) and/or offer having a friend or relative with them might help them to remember information, or otherwise help them make the decision.

    Having worked through these steps are you still in doubt about your patient’s capacity to make the decision? YES

  2. Step 2. Initiate a two-stage test

    Does the patient have a permanent or temporary impairment or disturbance of the mind or brain? YES
    This could be due to long-term conditions such as mental illness, dementia, or learning disability, or more temporary states such as confusion, unconsciousness, or the effects of drugs or alcohol.

    Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision? YES

  3. Step 3. Assess functional capacity: a four-stage process
    If the answer to any of the following questions is NO, make a decision on behalf of the patient's best interests
    If the answer to ALL the following questions is YES, consent should be sought in the usual way.

    1. Can this person understand the information necessary to make the decision?

    2. Can this person retain the information for long enough to make the decision?

    3. Can this person use or weigh the information in order to make the decision?

    4. Can this person communicate the decision by any means?

Level of certainty

The determination of incapacity is based on the balance of probabilities.
Following the above steps, you should be able to show that it is more likely than not, that the person lacks the capacity to make a specific decision when they need to.

Additional points 

  1. A person must be assumed to have capacity unless it is established that he lacks capacity.

  2. A person cannot be deemed to lack capacity solely because they make an 'unwise' decision.

  3. A patient who is suffering from a mental disorder may or may not lack the capacity to give or withhold their consent.

  4. A person should not be assessed as lacking capacity solely on the basis of their appearance or the presence of a disability or physical or mental disorder.

  5. Capacity is dynamic and a specific function in relation to the decision to be taken. This will need to be regularly assessed in relation to each decision taken, and carefully documented.

Adults lacks capacity

Make 'best interests' decision

In adults deemed to lack capacity, and in the absence of a proxy decision-maker, the healthcare professional must make a decision in the patient’s best interests.

A number of factors should be addressed including: 

The patient's own wishes (a valid advance refusal of treatment is legally binding; advance requests are not legally binding but must be given weight) 

Consider which option will be the least restrictive of the patient’s future options [Will the person regain capacity? If so, can the decision wait?]

Consult with the patient’s friends and relatives (and parents if patient is a child), and members of the healthcare team.

Consider which option will be of overall benefit to the patient.

Proxy decision-makers given legal authority to make healthcare decisions for the adult who lacks capacity

  1. An attorney appointed under a Lasting Power of Attorney (LPA): welfare attorney may make health and personal welfare decisions

  2. A deputy appointed by the Court of Protection

  3. Independent Mental Capacity Advocate (IMCA) : an IMCA may be appointed and consulted over decisions regarding 'serious medical treatment', or place of residence for an adult who lacks capacity and has no relatives or friends to be consulted,

Children and young people

Are children and young people presumed to have capacity? 

  1. There is no presumption of capacity for people under 16.

  2. To demonstrate their capacity to make a decision they must meet certain standards set by the courts (Gillick competency, Fraser criteria).

Competent children 

  1. Gillick competence is concerned with determining a child’s capacity to consent to medical treatment.

  2. Fraser guidelines are used specifically to decide if a child can consent to contraceptive or sexual health advice and treatment.

  3. Where a person under the age of 16 is not Gillick competent and therefore is deemed to lack the capacity to consent, then consent for treatment can be given on their behalf by someone with parental responsibility (it is usually sufficient to have consent from one parent) or by the court.

  4. A young person who has the capacity to consent to straightforward, relatively risk-free treatment may not necessarily have the capacity to consent to complex treatment involving high risks or serious consequences

Gillick competence (Gillick test)

  1. Victoria Gillick challenged Department of Health guidance which enabled doctors to provide contraceptive advice and treatment to girls under 16 without their parents knowing. In 1983 the judgement from this case laid out criteria for establishing whether a child under 16 has the capacity to provide consent to treatment

  2. It was determined that children under 16 can consent if
    they have sufficient understanding and intelligence to fully understand what is involved in a proposed treatment, including its purpose, nature, likely effects and risks, chances of success and the availability of other options.
    consent is given voluntarily and not under undue influence or pressure by anyone else.

  3. A child may have the capacity to consent to some treatments but not others as the understanding required for different interventions will vary.

Fraser guidelines

Fraser guidelines originally just related to contraceptive advice and treatment to those under 16 without parental consent, but, following a case in 2006, they now apply to decisions about treatment for sexually transmitted infections and termination of pregnancy.

The House of Lords concluded that advice can be given in this situation as long as:

  1. He/she has sufficient maturity and intelligence to understand the nature and implications of the proposed treatment

  2. He/she cannot be persuaded to tell her parents or to allow the doctor to tell them

  3. He/she is very likely to begin or continue having sexual intercourse with or without contraceptive treatment

  4. His/her physical or mental health is likely to suffer unless he/she received the advice or treatment

  5. The advice or treatment is in the young person’s best interests.

Under 13

  1. There is no lower age limit for Gillick competence or Fraser guidelines to be applied.

  2. It would rarely be appropriate or safe for a child less than 13 years of age to consent to treatment without a parent’s involvement.

  3. When it comes to sexual health, those under 13 are not legally able to consent to any sexual activity, and therefore any information that such a person was sexually active would need to be acted on, regardless of the results of the Gillick test.

16-17 year olds

  1. Young people aged 16 or 17 are presumed in law, like adults, to have the capacity to consent to medical treatment.

  2. Parents cannot override the competent consent of a young person to treatment that you consider is in their best interests.
    But you can rely on parental consent when a child lacks the capacity to consent.

  3. However, 16-17 year olds refusal of treatment can be overridden in circumstances where refusal would likely lead to death, severe permanent injury or irreversible mental or physical harm.

  4. This is because of an overriding duty to act in the best interests of a child.

  5. You should seek legal advice (Court of Protection) if you think treatment is in the best interests of a competent young person who refuses treatment.
    You must carefully weigh up the harm to the rights of children and young people of overriding their refusal against the benefits of treatment, so that decisions can be taken in their best interests.

Dr Rajesh VarmaAssessment of capacity