Ethics

Capacity

A patient with capacity is intellectually able to make a decision for themselves
Capacity and competency are equivalent terms, but the UK Mental Capacity Act has increased the use of the former
It is a fundamental human right and a basic ethical principle that individuals can make autonomous decisions. However, society also accepts that some of its members, eg children and adults with severe cognitive problems, do not have the ability to make decisions for themselves and mechanisms are in place to protect them
Older people and ill patients (matched for age) are much more likely to lack capacity than the general population and it is important that a geriatrician should be familiar with capacity and its assessment (Table 27.1)
Best UK practice has now been enshrined in law by the Mental Capacity Act 2005

▶Always remember that in declaring someone without capacity you may be robbing them of the ability to be involved in important decisions about their health and lifestyle—however benevolent your motives, such decisions should never be taken lightly or inexpertly.

Table 27.1 Assessing capacity

Capacity is decision-specific. Questions which are more complex and/or more important demand a higher level of capacity	Assess capacity for each relevant question individually. Global tests, eg mental test scores are not a substitute and can be misleading
Capacity is assumed for adults	The burden of responsibility is with the assessor to prove a lack of capacity
Capacity levels may fluctuate. Some types of dementia and delirium can cause transient reversible incompetence	Ensure the patient is functioning at their best before assessing capacity. If in doubt repeat the assessment later
Ignorance is not the same as a lack of capacity	Patients should be educated about a subject before being asked to make a decision (just as you would expect a surgeon to explain an operation before asking you to sign a consent form)
A patient with capacity may make an unwise or unconventional decision	Patients with capacity can make decisions which lead to illness, discomfort, danger, or even death. Carers/relatives often need education and support when the patient chooses an unwise option

HOW TO … Assess capacity

Trigger—doctors should be alert to the possibility of a lack of capacity but it is often people closer to the patient (relatives/carers) who highlight a problem. In real life a capacity assessment is usually only employed where there is conflict or where an important step (such as a will or enduring power of attorney) is being attempted. Previous assessments of capacity for other decisions or at other times are not a substitute for the latest assessment
Education—the patient should be given ample time to absorb and discuss the facts/advice. Several education sessions may be needed. Encourage other health professionals and relatives to discuss the topic with the patient as well
Assessment—probe the patient to assess retention, understanding and reasoning. The UK Mental Capacity Act outlines a functional test of capacity. Does the person have the ability to:
- Understand the information?
- Retain information related to the decision?
- Use or assess the information while considering the decision?
- Communicate the decision by any means?

The patient can fail at any step, most commonly the first.

In borderline or contentious cases employ a second opinion (often from a psychogeriatrician).

Action—document the results of the assessment using observations and patient quotes. If the patient lacks capacity state how the substituted decision will be made, eg medical decision in best interests, involvement of carers, case conference, etc.

For examples of documented capacity decisions see Box 27.1 and Box 27.2).

Further reading

The British Medical Society (

www.bma.org.uk) and the General Medical Council (

www.gmc-uk.org) provide extensive guidance on consent and capacity.

The UK 2005 Mental Capacity Act gives a legal framework. Online:

www.opsi.gov.uk/acts/acts2005/ukpga_20050009_en_1.

The Mental Capacity Act 2005

Legislation covering England and Wales that provides a framework to empower and protect people who may lack capacity to make some decisions for themselves. Prior to the Act, decisions were often made guided by case law and although this statutory law has not dramatically effected the way in which geriatricians function it has clarified who can take decisions, in which situations, and how they should go about this. It also allows people to plan ahead for a time when they may lack capacity by creating a lasting power of attorney (LPA) which is a legally binding advance directive (AD) (see

‘Advance directives’, p.664).

The Act covers a range of decisions, from major (eg concerning property and affairs, healthcare treatment and where the person lives) to more minor everyday decisions (eg what the person wears), where the person lacks capacity to make those decisions themselves.

There are five key principles in the Act:

Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise
A person must be given all practicable help before anyone treats them as not being able to make their own decisions
Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision
Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests
Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms

Independent mental capacity advocates

Provision of independent mental capacity advocates (IMCAs) was a requirement of the UK Mental Capacity Act 2005.

An IMCA should be appointed where the following apply:

The patient lacks, or has borderline capacity
There is no legal proxy, close relative, or other person who is willing or able to support or represent the patient
There is a major decision to be made (eg serious medical treatment or a change of habitation)

The IMCA will have authority to make enquiries about the patient and contribute to the decision by representing the patient’s interests, but cannot make a decision on behalf of the patient.

Deprivation of Liberty Safeguards

The DoLS are described in the Mental Health Act (2007) which updates the UK Mental Capacity Act (2005). They aim to protect people in care homes and hospitals from being inappropriately deprived of their liberty. The safeguards have been put in place to make sure that a care home or hospital only restricts someone’s liberty safely and correctly, and that this is done when there is no other way to take care of that person safely. The safeguards apply to vulnerable adults who lack capacity but not those who are detained under the Mental Health Act (1983).

What is deprivation of liberty?

As there is no single legal definition of ‘deprivation of liberty’ it can sometimes be difficult to establish whether it is taking place. Restrictions of a person’s activity can range from minor (eg not allowing choice of clothing) to extreme restriction (eg refusing to allow a person to see family or friends). Whether the restriction is great enough to amount to a deprivation of liberty will depend on the individual circumstances. Case law is growing in this area.

When should the safeguards be used?

People should be cared for in hospital or a care home in the least restrictive way possible, and those planning care should always consider other options. However, if all alternatives have been explored and the institution believes it is necessary to deprive a person of their liberty in order to care for them safely, then strict processes must be followed. These are the DoLS, designed to ensure that a person’s loss of liberty is lawful and that they are protected.

The safeguards provide the person with a representative, allow a right of challenge to the Court of Protection against the unlawful deprivation of liberty and require that the decision be reviewed and monitored regularly.

If there is concern that a person is being deprived of liberty, then the institution should be approached and concerns addressed. If the institution believes that the restrictions are necessary for safe care of the patient then a DoLS authorization must be sought via the relevant body (see

‘Compulsory detention and treatment’, p.230).

Making financial decisions

Power of attorney (POA)

This is a simple legal document that allows an adult to nominate another person to conduct financial affairs on their behalf. It is only valid while the person donating the attorney remains competent to do so.

Lasting power of attorney for property and financial affairs

This was introduced in the Mental Incapacity Act 2005 and is often but not always combined with a health and welfare LPA (see ‘Making medical decisions’, p.660)
It enables nomination of an attorney to make decisions about property and financial affairs—usually trusted family member(s)
Powers include paying bills, collecting income and benefits or selling property, subject to any restrictions or conditions that might have been included in the LPA
It can only be used once it has been registered at the Office of the Public Guardian, but this can be done before the donor lacks capacity, so the attorneys can carry out financial tasks under the supervision of the donor
A registered LPA can be revoked by the donor if they have capacity

Enduring power of attorney (EPOA)

Before October 2007, people could grant an EPOA so a trusted person could act for them if they could no longer manage their finances. This has now been replaced by property and affairs LPA (see ‘Lasting power of attorney for property and financial affairs’, p.658)
Any EPOA remains valid whether or not it has been registered at the Court of Protection, provided that both the donor of the power and the attorney/s signed the document prior to 1 October 2007
An EPOA can be used while the donor has mental capacity, provided they consent to its use
Once capacity to manage finances is lost, the attorney/s are under a duty to register the EPOA with the Office of the Public Guardian
An EPOA/POA does not cover anything other than financial decisions

Incompetent patients

An LPA/EPOA cannot be made once the patient is incompetent to understand the principles of the document (although it is not necessary for them to be fully competent to run their financial affairs)
If an LPA/EPOA is not available for incompetent patients, sometimes the finances can be managed informally, eg the pension can be paid out and joint bank accounts can continue.
To formally take over financial management in these circumstances (especially for large estates or where conflict exists) an application to the Court of Protection must be made
Since the Mental Capacity Act 2005 this court can appoint deputies to manage financial, health, and welfare decisions

Testamentary capacity

This refers to the specific capacity to make a will. Solicitors and financial advisors can help draw up a will and occasionally request a doctor’s opinion about competence. Legal guidelines are well established (see

‘Making a will’, p.678).

Signing an LPA

Patients should generally avoid making an LPA while unwell or in hospital as this would make it harder to prove that the patient had capacity if the validity of the document was ever challenged.

Before an LPA is valid, there must be a certificate of capacity drawn up by an independent third party called a Certificate Provider. The Certificate Provider could be a solicitor, a doctor, or another independent person whom the donor has known personally for at least 2 years. In some cases (eg after a stroke) it may be most appropriate to ask a doctor to carry out the assessment.

If a capacity assessment is required, check that the patient understands that once registered, the LPA allows the attorney complete financial control, this power extends into the future and they will be unable to revoke the power if they lack capacity. Document carefully as shown in Box 27.1.

The signing of an LPA must also be witnessed by an independent person (often a friend or in hospital by an administrator or manager). This should not be confused with the role of Certificate Provider.

Box 27.1 Assessment of capacity to complete an LPA

I interviewed Mrs Jones today. She indicated she wished to make an LPA in the favour of her husband and did not appear to be under duress from another person. She explained her health was deteriorating and she wanted her husband to manage the ‘bills and things’ if she did not feel up to it in the future. She was able to tell me her that she owned a current account, savings account, some premium bonds, and that the mortgage had been paid off on their house. She understood that an LPA would allow her husband to do as he wished with her money without necessarily consulting her both now and in the future. She knew that this power would continue even if she was too ill to be consulted. She confirmed that ‘he has always sorted that sort of thing out and I don’t want him to be stopped from doing it because I can’t sign my cheques—I trust him to do the right thing’.

I believe Mrs Jones is competent to give lasting power of attorney to her husband.

Dated _____________________

Signed ______________________

Making medical decisions

Lasting power of attorney for health and welfare

This was introduced in the Mental Incapacity Act in April 2005
It enables nomination of an attorney to make decisions about personal welfare—usually trusted family member(s)
A personal welfare LPA can only be used once the form is registered at the Office of the Public Guardian and the patient has become mentally incapable of making decisions about their own welfare
It can include the power for the attorney to give or refuse consent to medical treatment if this power has been expressly given in the LPA (a proxy medical decision maker)
Also includes power to make some social decisions, eg where the donor lives

Patients who clearly lack capacity

Unless a valid LPA is available in the UK no one can make a decision about medical treatment for another adult without capacity
It is always worth enquiring if a LPA is completed or if there is a written or verbal AD made by the patient prior to them becoming incompetent (see ‘Advance directives’, p.664)
Doctors are required by the Mental Capacity Act to make decisions in the ‘best interests’ of their incompetent patients, and this holds true even if there is a valid LPA
In America a hierarchy of next of kin can legally make substitute decisions. Relatives are often surprised and occasionally angry to find that they have few rights in the UK
In practice doctors should routinely consult next of kin where important or contentious medical decisions are made for patients without capacity. The human rights legislation, through its support of ‘family life’ as a basic human right will reinforce the social shift towards increasing power for relatives. Relatives can help doctors to decide what the patient might have wanted under the circumstances, assisting decisions about best interest
If there is conflict between the medical team and relatives about what is in the best interests of the patient that cannot be resolved the doctor involved may wish to seek a second medical opinion, consult with the hospital legal team, an IMCA, or refer to the courts

Patients who may or may not have capacity

Patients’ views should always be sought about medical treatments
Often these views will concur with those of the medical professional, or they are happy to be guided by the doctor
Rarely, a patient will express a view at odds with either the medical team or their family, in which case a careful assessment of capacity to make their own decision is required
Assess capacity in line with the principles outlined previously and document meticulously in the notes (see example in Box 27.2) see ‘Making complex decisions’, p.667

Box 27.2 Assessment of patient refusing a colectomy for cancer

Miss Joseph has told me she will not consent to a colectomy. I have explained the procedure that is being recommended including the benefits and risks and she has been able to remember and understand this information without difficulty. She explains that in view of her age and lack of current symptoms she would rather not put herself through a major operation. She said ‘I am 79 years old and I don’t want to be mucked around’. She understands that by refusing surgery she might be shortening her life and that she may become ill in the future as the tumour grows but feels that this is a ‘lesser evil’ than an operation at the moment. I believe she has capacity to make this decision and we have agreed to discuss it again in two weeks time during an outpatient appointment after she has spoken to her family.

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