Capacity to Make Treatment Decisions

The MCA 2005 capacity test has two stages:

1. Stage 1 — Diagnostic threshold: Is there an impairment of, or disturbance in the functioning of, the mind or brain? This could include conditions such as dementia, severe mental illness, unconsciousness, severe learning disability, or the effects of drugs or alcohol.
2. Stage 2 — Functional test: As a result of that impairment or disturbance, is the person unable to:

• Understand the information relevant to the decision (including reasonably foreseeable consequences of deciding one way or the other, or of failing to make a decision)?
• Retain that information for long enough to make a decision?
• Use or weigh the information as part of the process of making the decision?
• Communicate their decision (by any means — speech, sign language, eye movements)?

If a person cannot do one or more of these things, they lack capacity for that particular decision at that time. Capacity assessments must be repeated for each significant decision.

Where a person lacks capacity, any decision made on their behalf must be in their best interests. The MCA 2005 sets out a checklist for best interests decisions:

• Consider all relevant circumstances — not just medical factors.
• Involve the person as much as possible in the decision.
• Try to establish the person's past and present wishes, feelings, beliefs, and values.
• Consult carers, family members, and anyone else named by the person as someone to be consulted.
• Consider whether the person is likely to regain capacity — if so, can the decision wait?
• For decisions about life-sustaining treatment, the decision-maker must not be motivated by a desire to bring about the person's death.

An Independent Mental Capacity Advocate (IMCA) must be involved when a person lacking capacity has no one else (other than paid carers) to consult, and an NHS body or Local Authority is making decisions about serious medical treatment or a change of accommodation.

An Advance Decision to Refuse Treatment (ADRT) — sometimes called a "living will" — allows an adult with capacity to refuse specific medical treatments in advance, for situations where they may later lack capacity. To be legally binding under the MCA 2005, an ADRT must:

• Be made by a person aged 18 or over who had capacity at the time.
• Specify the treatment being refused and the circumstances in which the refusal applies.
• For refusals of life-sustaining treatment: be in writing, signed by the person making it, and witnessed, and contain a statement that the refusal applies even if life is at risk.

A valid and applicable ADRT is as legally binding as a contemporaneous refusal of treatment by a person with capacity — healthcare professionals who override a valid ADRT commit a criminal assault. Always tell your GP and relevant healthcare providers about your ADRT and ensure it is in your medical records.

The MHA 1983 and MCA 2005 operate alongside each other but have different scopes:

• Where a person is detained under the MHA 1983, the MHA takes precedence over the MCA for decisions about mental disorder treatment. Treatment for mental disorder can be given under Part 4 of the MHA even if the patient refuses — an ADRT cannot override this.
• The MHA does not authorise treatment for physical conditions — for physical treatment of a detained patient who lacks capacity, the MCA 2005 best interests framework applies.
• An ADRT can refuse physical treatment even for a detained patient — for example, refusing a blood transfusion or resuscitation.
• For people who lack capacity and are not objecting to hospitalisation, the MCA's Deprivation of Liberty Safeguards (DoLS) — and ultimately the Liberty Protection Safeguards when implemented — provide the authorisation framework rather than the MHA.