Summary

The Mental Capacity Act (2005) provides the statutory framework in England and Wales for making decisions on behalf of individuals aged 16+ who lack the mental capacity to do so themselves. It balances autonomy (the right to decide) with protection (safeguarding the vulnerable). The Act applies to all decisions, from minor (what to eat) to major (life-sustaining treatment). Capacity is always Time-Specific (at the moment of decision) and Decision-Specific (can decide breakfast but not surgery). It cannot be assumed based on age, appearance, or medical diagnosis. [1,2]

The Five Statutory Principles (Section 1)

1. Assume Capacity: Every adult has the right to make their own decisions unless proven otherwise.
2. Support: Taking all practicable steps to help the person decide (e.g., visual aids, translators, timing) before concluding they cannot.
3. Unwise Decisions: A person is not to be treated as unable to make a decision merely because they make an unwise one. (Eccentricity ≠ Incapacity).
4. Best Interests: Any act done for a person who lacks capacity must be in their best interests.
5. Least Restrictive: Before acting, regard must be had to whether the purpose can be achieved in a way that is less restrictive of the person's rights/freedom.

Image: 5 Principles of MCA

Clinical Pearls

The "Eccentric Millionaire" Rule: Just because a patient makes a decision you think is "crazy" (e.g., refusing antibiotics for sepsis to go treat their cat), it does not mean they lack capacity. If they understand the risks (death), they can refuse. Capacity protects the process of deciding, not the outcome.

Fluctuating Capacity: In delirium or UTI, capacity may come and go. If a decision can wait until capacity returns, it must wait.

Next of Kin (NOK): In UK Law, "Next of Kin" implies NO legal power to consent. They cannot sign consent forms for an incapacitated adult. Only an LPA (Attorney) or Deputy can. Otherwise, the doctor decides in "Best Interests" (consulting the NOK).

The Two-Stage Test

To establish a lack of capacity, you must demonstrate TWO things:

Stage 1: The Diagnostic Test

• Is there an impairment of, or disturbance in the functioning of, the mind or brain?
• Examples: Dementia, Delirium, Brain Injury, Intoxication, Severe Mental Illness.
• If NO impairment exists, they HAVE capacity (even if they are making a terrible decision).

Stage 2: The Functional Test (Section 3)

• Does the impairment mean the person is unable to make the specific decision?
• A person is unable to make a decision if they fail ANY ONE of the following four:
  1. Understand the information relevant to the decision.
  2. Retain that information long enough to decide.
  3. Use or Weigh that information as part of the process.
  4. Communicate the decision (by any means - talking, blinking, squeezing hand).

Documentation is Key

"Patient lacks capacity" is insufficient. You must write:

1. Impairment: "Patient has Alzheimer's Disease..."
2. Functional Failure: "...because they cannot Retain the information about the risks of surgery (states they are perfect 5 minutes after explanation) and cannot Weigh the risks (maintains belief that leg will heal by magic)."
3. Causal Link: "The inability to weigh is caused by the delusions from their dementia."

Specific Scenarios

• Refusal of Treatment: High threshold for documentation.
• Self-Discharge: Assess capacity to understand risks (worsening, death). If they lack capacity and are a danger, prevent discharge (Best Interests/DoLS).

If a patient lacks capacity, you become the decision maker. You must checklist:

The Best Interests Checklist

1. Delay: Will they regain capacity? Can the decision wait?
2. Participation: Involve the person as much as possible.
3. Wishes & Feelings:
   • Past and present wishes involved.
   • Written statements (that are not valid Advance Decisions).
   • Values and beliefs (e.g., "She would hate to be dependent on machines").
4. Consultation: You MUST consult anyone named by the person (LPA, family, carers) to determine what the patient would have wanted.
5. No Discrimination: Do not make assumptions based on age, appearance, or condition.

Image: Best Interests Balance Sheet

IMCA (Independent Mental Capacity Advocate)

• Role: To represent the patient when there is NOBODY ELSE to consult (Unbefriended).
• Mandatory Instruction Criteria:
  1. Serious Medical Treatment (e.g., Cancer treatment, Amputation, Withdrawal of treatment).
  2. Change of Accommodation (e.g., Moving to a Care Home >8 weeks).
  3. Exceptions: Emergency treatment (don't wait for IMCA), MHA detention (different advocate).

One of the hardest decisions in psychiatry/ER is which Act to use.

The "Gap":

• A patient with capacity (no impairment) who is refusing treatment for a physical condition (e.g., overdose) but has a mental disorder.
• Rule: You cannot use MHA to treat physical illness unless the physical illness is a direct consequence/symptom of the mental disorder (e.g., self-harm wounds from depression? Contentious. Usually NO).

Management Algorithm

           DECISION REQUIRED
                  ↓
      Does patient have impairment?
      (e.g. Dementia/Delirium)
          NO              YES
          ↓                ↓
    HAS CAPACITY      FUNCTIONAL TEST
    (Can decide)      (Understand/Retain
                      Weigh/Communicate)
                       ↓          ↓
                     PASS        FAIL
                       ↓          ↓
                  HAS CAPACITY  LACKS CAPACITY
                       ↓          ↓
                  Respect     CHECK FOR AD/LPA
                  Decision    (Advance Decision/
                              Power of Attorney)
                              ↓          ↓
                            YES         NO
                            ↓            ↓
                        Follow AD    BEST INTERESTS
                        or Ask LPA   DECISION (You)

Lasting Power of Attorney (LPA)

• A legal document where a person (Donor) appoints someone (Attorney) to make decisions if they lose capacity.
• Health and Welfare LPA: Can make medical decisions (including refusing life support if specified).
• Property and Financial LPA: Cannot make medical decisions.
• Check the paper validity online.

Advance Decisions to Refuse Treatment (ADRT)

• "Living Will".
• Legally binding if:
  1. Written, Signed, Witnessed.
  2. Specific to the treatment (e.g., "No Ventilator").
  3. States "Even if life is at risk".
• Override: Recent actions inconsistent with the AD (e.g., patient converted to Catholicism since signing).

Image: DoLS Process

Definition

• The "Acid Test" (Cheshire West):
  1. Is the person under continuous supervision and control?
  2. Is the person not free to leave?
• If YES to both, and they lack capacity to consent to this, they are deprived of liberty.
• This creates a legal vulnerability (Article 5 ECHR).
• DoLS authorisation is required to make this lawful in hospitals/care homes.

The Process (Forms)

1. Form 1 (Urgent Authorisation):
   • Completed by the Hospital (YOU).
   • Lasts 7 days. allows you to detain immediately.
   • Must be signed by the person in charge.
2. Form 2 (Standard Authorisation):
   • The application to the Local Authority (Supervisory Body) for longer detention.
   • Triggered alongside Form 1.
3. Assessment:
   • A "Best Interests Assessor" (BIA) and a "Mental Health Assessor" (Doctor) will visit.
   • They confirm capacity and that detention is necessary/proportionate.

Liberty Protection Safeguards (LPS)

• Note: LPS was intended to replace DoLS but has been indefinitely delayed by the UK government (as of 2024/25). DoLS remains the current system.

Key Guidelines

Landmark Cases

1. Cheshire West (Supreme Court 2014)

• Finding: "A gilded cage is still a cage."
• Impact: Expanded definition of deprivation of liberty to include compliant patients (e.g., happy dementia patients in locked wards). Triggered massive increase in DoLS applications.

2. Montgomery v Lanarkshire (2015)

• Impact: While about consent, it emphasised that "Material Risks" are what the patient considers significant, not just the doctor. Relevant for the "Understanding" test.

Can I sign for my mum?

In the UK, no. Unless you have a specific legal document called a "Lasting Power of Attorney," being the Next of Kin does not give you the right to sign consent forms for surgery.

So who decides?

The doctors decide. However, by law, the doctors MUST ask you what your mum would have wanted. They must act in her "Best Interests," and you are the expert on her wishes. We make the decision together.

What is a DoLS?

Because your mum is confused, she doesn't know she needs to stay in hospital for her safety. We have to stop her leaving (lock the doors) to keep her safe. To do this legally (so we aren't just kidnapping her), we apply for a "Deprivation of Liberty Safeguard." It's a check to make sure we are only keeping her here because she really needs it.

Common Exam Questions

1. Medical Ethics: "Patient with dementia needs amputation. Daughter refuses 'because it's ugly'. Patient lacks capacity. No LPA. What do you do?"
   • Answer: Proceed in Best Interests (medical necessity overrides daughter's aesthetic objection, though her views are considered).
2. Psychiatry: "The 4 criteria for capacity?"
   • Answer: Understand, Retain, Weigh, Communicate.
3. Law: "Difference between MHA and MCA?"
   • Answer: MHA is for treating mental disorder (without consent). MCA is for treating physical disorder (in someone lacking capacity). You cannot use MHA to treat a broken leg.
4. Geriatrics: "Who instructs an IMCA?"
   • Answer: The NHS body/Local Authority, for unbefriended patients facing serious treatment or accommodation moves.

Viva Points

• Unwise Decisions: Give an example. (A Jehovah's Witness refusing blood is NOT lacking capacity. They are making a capacity-driven choice based on faith, even if outcome is death).
• Fluctuating Capacity: How to manage? Wait if possible. If emergency, treat in best interests.

Medical Disclaimer: MedVellum content is for educational purposes and clinical reference. Clinical decisions should account for individual patient circumstances. Always consult appropriate specialists.