Consent guidance: Assessing capacity

1. 71. You must assess a patient’s capacity to make a particular decision at the time it needs to be made. You must not assume that because a patient lacks capacity to make a decision on a particular occasion, they lack capacity to make any decisions at all, or will not be able to make similar decisions in the future.
2. 72. You must take account of the advice on assessing capacity in the Codes of Practice that accompany the Mental Capacity Act 2005 and the Adults with Incapacity (Scotland) Act 2000 and other relevant guidance. If your assessment is that the patient’s capacity is borderline, you must be able to show that it is more likely than not that they lack capacity.
3. 73. If your assessment leaves you in doubt about the patient’s capacity to make a decision, you should seek advice from:
4. 1. a. nursing staff or others involved in the patient’s care, or those close to the patient, who may be aware of the patient’s usual ability to make decisions and their particular communication needs
   2. b. colleagues with relevant specialist experience, such as psychiatrists, neurologists, or speech and language therapists.
5. 74. If you are still unsure about the patient’s capacity to make a decision, you must seek legal advice with a view to asking a court to determine capacity.