This ethical hub topic shows how our professional standards can be applied in this area of care and signposts to relevant resources. It does not set new professional standards and is not intended to replace the formal guidance.
Mental capacity is about being able to make your own decisions.
It is decision and time specific. We all make decisions every day, and most of us are able to make these ourselves. Sometimes, we may lack capacity to make a big decision. But this doesn't always mean we are unable to make smaller decisions such as what to wear each day.
81 You must start from the presumption that every adult patient has capacity to make decisions about their treatment care. You must not assume a patient lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including mental illness), beliefs, their apparent inability to communicate, or because they choose an option that you consider unwise.
83 A person has capacity if they can do all the following:
When seeing patients, you must start with the presumption that every adult patient has the capacity to make decisions about their care.
Always assess a patient’s capacity to make a particular decision at the time it needs to be made. Don’t assume that because a patient lacks capacity to make a decision on a particular occasion, they lack capacity to make any decisions at all now or in the future. Requirements can differ from country to country but by following the principles in our Decision making and consent guidance you’ll always be in line with the law. Always record your actions and decision clearly.
Always assess a patient’s capacity to make a particular decision at the time it needs to be made. Don’t assume that because a patient lacks capacity to make a decision on a particular occasion, they lack capacity to make any decisions at all now or in the future. Requirements can differ from country to country but by following the principles in our Decision making and consent guidance you’ll always be in line with the law. Always record your actions and decision clearly.
Don't assume if someone...
...they don't have capacity.
When assessing capacity, always start with the assumption that the patient does have capacity.
Paragraphs 81 and 83 - Presuming capacity
Paragraphs 27-30, 35, 37-38, 76, 82 - Maximising a patient's ability to make decisions
BMA’s Mental Capacity Act toolkit
Guidance for healthcare professionals on assessment of capacity
Adults with incapacity: guide to assessing capacity
Mental Capacity Act (Northern Ireland) 2016 training, FAQs and other resources
27 Patients need relevant information (see paragraph 10) to be shared in a way they can understand and retain, so they can use it to make a decision. To help patients understand and retain relevant information you should:
28 You should be alert to signs that patients may need support to understand and retain the relevant information, use it to make a decision, or communicate that decision to you.
29 You should make sure that reasonable adjustments are made so that patients with additional needs have enough time and support to understand relevant information and make a decision. In all cases, you must treat patients fairly and not discriminate against them.
It is a doctor’s duty to help patients maximise their ability to have capacity and therefore be involved in their own healthcare.
Below are a few examples of why someone may struggle at each stage of assessing capacity and some possible ways you can help them so they have capacity.
If you assess that your patient lacks capacity to make the relevant decisions, you must make decisions about their care based on what would be ‘of overall benefit’ (in their best interests). When making these decisions there are a range of legal requirements laid down in national mental capacity laws and codes which you must take into account.
There are also statutory decision-making principles, safeguards and good practice requirements set out in these national laws or codes, which you must incorporate into your usual practice. For example, the importance you should attach to exploring a patient’s previous wishes, preferences, values and beliefs; how you communicate with and involve a patient’s family or others close to the patient; your approach to obtaining second opinions; and how you work with the healthcare team and multi-agency teams to inform and implement decisions.
Some of the requirements are essential procedural steps, for example completing a capacity certificate (Scotland), or authorising a ‘deprivation of liberty’ in some treatment situations.
Our Decision making and consent guidance sets out professional standards of practice in this area which take account of the legal requirements in national mental capacity laws and codes across England, Northern Ireland, Scotland and Wales. You can be confident that the standards in our guidance are consistent with the legal obligations that apply in the country where you practise. Of course it’s important to seek advice, in case of any uncertainty about the current legal position, as the law in this area can be complex.
Paragraphs 81 and 83 - Presuming capacity
Paragraphs 27-30, 35, 37-38, 76, 82 - Maximising a patient's ability to make decisions
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