Mental Capacity - Component 3

Diagnostic Test and Capacity

• If both diagnostic and a functional test criteria are met, the patient is considered to lack capacity.
• A best interests decision should be initiated immediately when capacity is lacking.

Fluctuating Capacity

• Refers to variability in a person's decision-making ability; they may lack capacity at one time but regain it later.
• Conditions causing fluctuating capacity include seizures, where capacity may return post-ictally.
• It is critical to assess if waiting for capacity to return is safe before making health decisions.

Best Interests Decisions

• Must consider non-discrimination, relevant personal circumstances, encouragement of participation, and the wishes, feelings, beliefs, and values of the patient.
• Consider the views of family and other stakeholders, using structured frameworks like LA66.

Protection from Liability

• A reasonable assessment of capacity must have been made.
• Must have a reasonable belief that the individual lacks capacity and any acts taken are in their best interest.

Legal Powers for Police

• Sections 135 and 136 of the Mental Health Act (MHA) are the sole legal powers allowing police to remove mentally disordered individuals to safety for assessment.
• The Mental Capacity Act (MCA) cannot replace the MHA but allows police to assist with restraint if necessary for the individual’s best interests.

Lasting Power of Attorney (LPA)

• Must be valid, registered, and determine if the patient lacks capacity.
• LPA should align with the patient's best interests and include agreements from family and carers.

Deprivation of Liberty Safeguards (DoLS)

• Implemented to limit individuals' freedoms for their safety, requiring authorization from the Court of Protection.
• Emergency situations do not require authorization as immediate care takes precedence.

Raising Concerns

• Reports should be made if there are worries about excessive restrictions of a patient's rights, utilizing safeguarding referrals.

Advance Decisions

• Available to individuals aged 18 and older with the capacity to refuse specified treatments in advance.
• For life-sustaining treatments, conditions for validity include being written, signed, witnessed, and explicitly stating circumstances when life is at risk.

Validity of Advance Decisions

• Advance decisions become invalid if withdrawn, if a lasting power of attorney has been assigned, or if prior actions contradict the existence of the advance decision.

Managing Liability

• Must respect valid advance decisions if aware and satisfied with their validity.
• If uncertain, document decision-making rationale to protect against liability.

Legislation Overview

• Framework establishes definitions and guidelines for testing decision-making capacity.
• Protects individuals lacking capacity, addressing both everyday and significant decisions collectively.

Code of Practice and Statutory Principles

• The legal duty requires adherence to the Code of Practice concerning capacity assessments.
• Core principles include presuming capacity, assisting decision-making, and ensuring decisions align with the best interests of the person and are minimally restrictive.

Assessing Capacity

• Assessments must be time and decision-specific, recognizing the burden of proof lies on the balance of probabilities.
• The assessment includes a two-part test: diagnosing impairment and functional ability concerning understanding, communication, retention, and application of information.