Decision Making under the Mental
Capacity Act
The Mental Capacity Assessment and
Best Interests Decision-making Tool
Joanne Brown
Professional Support and Practice Development Nurse (LD)
The CIPOLD review of deaths…..
• Has also identified considerable concerns about adherence
to the MCA...
• A key concern has been lack of assessment to establish
that a person might not have the capacity to make a
particular decision…in some cases capacity appeared to be
made on the basis of their appearance
• included delays in convening Best Interest meetings
• Who should take the lead in Best Interest decision-making
• Poor recording of best interest decisions
• Misunderstandings about the process to follow in case of
disagreement.
• Health Professionals use Section 5, Best
Interests all the time, especially in
Emergency departments, just don’t realise it!
• BUT…
• when they have time to consider
investigations for people without capacity
some struggle with Best Interest process
Issues when not using the MCA
• Capacity assessments not completed
• Referred to psychology / psychiatrists for
capacity assessment - ?relevant information
for assessment
• If person says no – that decision is accepted
even if the person lacks capacity
• Presumption not tolerate investigation /
treatment / aftercare
Reasons given on GP records for not
accessing cervical screening
Out of 303 people only 107 had a cervical smear
(35%)
• Disclaimer
• Refused
• Non-responder
• Parents refused
• No information
• Not indicated as sexually active
• Reference to MCA and patients best interests (2
cases)
Diagnostic investigations
• GP referrals directly for investigations
• At appointment often cannot be carried out
as the person lacks mental capacity to
consent, person has to go back to GP
• Causes delays in diagnosis and treatment
Conclusions
• People with learning disabilities do not access
cancer screening and diagnostic investigations the
same as the general population.
• Main reason is because of lack of mental capacity
and lack of understanding of the implications of not
having tests / treatment carried out.
• Health professionals have a lack of knowledge
how to support people with learning disabilities
Best Interest Meetings
• Complex decisions / people with complex
needs need a Best Interest meeting
• BUT……
• Take time to organise – confusion of who
organises
• Has an impact on medical professionals
time
Solution?
Often at appointments the right people are in
attendance:• Patient
• Decision maker
• Person/s who knows the patient best
• No reason why capacity cannot be assessed at
the appointment
• Only complicated decisions need a best interest
meeting with multi professionals in attendance
MCA & BI Form for Health
Investigations / Treatment
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Aims to:Make life easier & give suggestions to assist
Record rationale for decision-making
Be clear and transparent
Can be used at Best Interest meetings
BUT….
It takes time to complete it – This would be
considered a reasonable adjustment
MCA & BI Form for Health
Investigations / Treatment
Step 1 – Involve people who know the person best
Step 2 – Refer to IMCA service if no family member to consult
Step 3 – Assume the person has mental capacity to make the
decision
Step 4 – Carry out Mental Capacity Assessment
Step 5 – Carry out a Best Interest discussion
Step 6 – Document your reasons every step of the way. This
will help you to reach a final decision
Step 7 – Record agreement with everyone present. Everyone
signs form
Is it used?
• Shared with local hospital
• Included in guidance documentation for
learning disabilities
• Shared with GP Practices
• GP’s / Practice Nurses don’t like writing
• A template is put on GP systems
• Capacity and Best Interests decisions will be
recorded on patients’ records
REMEMBER
“He who fails to plan,
plans to fail”
Proverb