Capacity assessment in the acutely distressed patient

The purpose of a capacity assessment is to ensure that a person’s capacity is maximised, and that they are empowered to make decisions. If applied correctly, this assessment can reduce paternalism and promote autonomy and engagement in care. It can be applied to any person over 16 years old and provides a framework of empowerment and protection.

The Mental Capacity Act 2005 puts forward several key principles for healthcare professionals to follow:

• Presumption of capacity – start by thinking individuals can make a decision
• Take realistic steps to help the individual make a decision
• Making an unwise decision does not mean an individual lacks capacity – for example, if someone has an infected wound but decides not to take antibiotics, this does not necessarily mean that they are confused or lack capacity
• Any decision must be made in the individual’s best interests – for example, if a person has taken

A two-stage test is used to determine the capacity of an individual. As an assessor, the healthcare professional must observe whether the person is unable to make a decision (using the functional test) and if this inability to make the decision is caused by a disturbance in the functioning of the person’s mind or brain. If the inability to make a decision is attributed to a disturbance in brain function, the assessor must establish if this is a long-term condition or a more acute state (using the diagnostic test). The assessor may then need to consider information from family, carers and other professionals. If someone is presenting as confused, intoxicated or very emotionally aroused (such as highly anxious), this may be a temporary state and capacity can later be regained. In these instances, it is necessary to bear in mind the urgency and nature of the decision. The assessor will

The healthcare professional must possess interpersonal skills in order to appropriately assess capacity, including:

• listening actively
• recognising and responding to verbal and non-verbal cues
• using prompts and positive verbal and non-verbal reinforcement
• using appropriate non-verbal communication, including touch, eye contact and personal space
• using open and closed questioning techniques
• using caring conversation techniques
• checking understanding and using clarification techniques
• being aware of their own unconscious bias in communication encounters
• establishing rapport and maintaining a therapeutic alliance
• tolerating and working with silence within an interaction
• conveying empathy by using explicit validation statements (Nursing and Midwifery Council (NMC), 2014)

Healthcare professionals must also display the following attributes:

• self-awareness, particularly when a person’s values and morals may conflict with their own
• critical reflection
• awareness of their own professional limitations and knowing when to seek support and advice
• understanding of personal and professional boundaries
• appropriate self-disclosure
• compassionate and non-discriminatory stance towards mental health
• warmth,

Decisions around capacity are often contentious, and poor practice can occur from lack of experience, lack of self-awareness, pressure, sense of urgency and conflicting morals and values. This can sometimes lead to complacency, a lack of attention to detail or loose interpretations of the Act. Some of the key risks occur when:

• The person makes an unwise decision that may affect their immediate or future health, sometimes with fatal consequences. However, the person may appear lucid and able to undertake the four tasks of the capacity assessment. In these instances, use of other legal frameworks may be appropriate.
• A blanket approach to the Mental Capacity Act, where clinicians determine that the patient lacks capacity and apply this to multiple aspects of the person’s life, rather than adhering to the decision and time-specific framework. This can lead to overly restrictive, coercive or even abusive care.
• A clinician’s own values and morals

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