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What are the 5 important rules to consider before considering someones capacity

1. A person must be assumed to have capacity unless it is established that he lacks capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.


How long does a capacity decision last for?

Capacity is decision specific and must be reassessed at each point. Just because someone didn’t have capacity last week doesn’t mean they don’t anymore.


In a patient without capacity should health care professionals make decisions on the patient behalf completely by themselves

When someone lacks capacity for a given decision the team looking after the patient must involve their family members / wider social and cultural circle to make a decision in the patient’s best interests. The involvement of social services, the MDT, relatives , carers etc. etc. is key to this process.


What is the first questions you should ask yourself when assessing someones capacity?

This asks ‘is there a disorder of the brain or mind’ which might be influencing this person’s ability to make decisions at this present time? If so, then a judgement needs to be made firstly on whether the impairment is likely to recover. For example, if the person has a severe pneumonia or a delirium, the person may recover capacity at a later stage. Secondly, a judgement needs to be made on the urgency of the decision in question. Could the decision wait for the person to recover if the impairment of brain or mind is temporary?


How should you test the capacity of someone?

For a capacity assessment to be valid in a court of law, you must demonstrate AND document each of these areas of decision making. To demonstrate capacity the person must be able to (and be supported to):
• Understand the information around the decision being made and why they need to make it
• Weigh Up the risks / consequences of making or not making the decision
• Retain the information long enough to make a decision
• Communicate it back to you. This can be in any communication form e.g. verbally, in written form, using sign language. A SALT may be helpful if this is a particular barrier.


Do capacity decision have to be proved beyond reasonable doubt?

Capacity assessment are made on the balance of probability. It is not necessary to prove beyond reasonable doubt


What is the court of protection?

A court that resides over and had authority of the property, financial affairs and personally welfare of people who lack mental capacity. It also has the power to decide if someone has capacity and to reside over the deprivation of liberties safeguarding. It can appoint deputies to make decisions on behalf of someone else.


What are DOLS?

Deprivation of Liberty Safeguards (DOLS)
These are locally managed by councils and should be considered whenever a person is being deprived of their liberty.


What situations would require DOLS?

Situations depriving people of liberty include:
• Confined to a restricted place for a non-negligible period of time
• Subject to ‘continuous and complete supervision and control’
• Person is not free to leave.
• Does not have the capacity to consent to their care and treatment in these circumstances

In a Care Home the relevant question is if the patient is free to leave (whether they want to or not). If they are prevented from doing so, they need a DoLS

In a Hospital this approach would not be practical, as most patients on a dementia ward, for example, are not free to leave.

Consequently, DoLS is only necessary if the patient is actively trying to leave, requires 1:1 nursing (preventing movement), or they are being given medication without consent.


What locations can DOLS be use in legally?

DOLs can only be used in care home or hospital (otherwise need Court order) and are granted by local authorities by requesting a ‘standard authorisation’. 6 assessments must take place, if met DOLS can be authorised for up to a year. If given, one key safeguard is that they must have someone to represent them, usually a family member or friend.


What are independent mental capacity advocates?

People who can act as an advocate for a person who does not have anyone else to do so, in making a decision.


What is power of attorney

Legally appointed to make decisions on another person’s behalf in the event that they lose capacity to make decisions for themselves. They must be appointed whilst the person has capacity to make the decision to do so and they only become effective when that person loses capacity. They cannot make decisions on their behalf prior to this. There are two types of power of attorney: social & welfare, and healthcare.


Can you assume by word of mouth than someone is a power of attorney if they say they are?

You must see the legal document to be able to act on it. It must also be registered to be effective. If in any doubt at all, ask your trust’s legal team to review the document for you.


How should the power of attorney's opinions regarding care be interpreted?

Once confirmed that the power of attorney is in place and that the person in question lacks capacity, the power of attorney’s decisions are to be considered the same as the patient’s and they should be consulted in the same way you would consult with your patient.