CAPACITY & CONSENT  

CAPACITY & CONSENT What is the right thing to do?   What the person wants? What their nearest and dearest think (or advocacy)? Professionals think?

CAPACITY? The ability to use and understand information to make a decision, and communicate the decision made. All adults are presumed to have capacity to make decisions unless there's significant evidence to suggest otherwise. A person may lack capacity if their mind or brain is impaired or disturbed in some way.

MENTAL CAPACITY ACT Presumption of capacity Least restrictive Unwise decisions Maximise capacity Best interests

IMPAIRED OR DISTURBED MIND OR BRAIN? mental health conditions severe learning disabilities - schizophrenia brain damage – stroke or other brain injury physical or mental conditions that cause confusion, drowsiness or a loss of consciousness intoxication caused by drug or alcohol use

SECOND TEST Has everything been done to help the person gain capacity? understand the decision weight up pros and cons recall what has been discussed communicate their decision

FLUCTUATIONS? a person's capacity to consent may come and go they may have the capacity to make some decisions but not others people can be considered capable of deciding some aspects of their treatment but not others – daily interventions but not long term complications a person with schizophrenia may have psychotic episodes (when they can't distinguish between reality and fantasy), during which they may not be capable of making certain decisions A person's capacity can also be temporarily affected by shock, panic, fatigue, medication

WHAT CAN WE DO? A decision made while you have capacity should be respected if you lose capacity at a later stage. Can the intervention wait for capacity to be gained? If you haven't made an advance decision or formally appointed anyone to make decisions for you, a best interests decision will have to be made.

BEST INTERESTS involve the person in the decision as much as possible trying to identify any issues the person would take into account if they were making the decision themselves If a person is felt to lack capacity, and there's no one suitable to help make decisions such as family members or friends, an independent mental capacity advocate (IMCA) must be consulted

COURT OF PROTECTION where there's serious doubt or dispute about what's in an person's best interests

ADVANCED DECISIONS AND POWER OF ATTORNEY If a person knows their capacity to consent may be affected in the future, they can choose to draw up a legally binding advanced decision. This sets out the procedures and treatments that a person refuses to undergo. You can also choose to formally arrange for someone, often a close family member, to have lasting power of attorney (LPA). Someone with LPA can make decisions about your health on your behalf, although you can choose to specify in advance certain treatments that you would like them to refuse.