Primrose Hospice
Mental Capacity Act including Deprivation of Liberty
Safeguards
Approved by:
Candy Cooley, Chairman
Date of approval October 2015
Originator(s):
Libby Mytton, Director of Care
1. Introduction
The Mental Capacity Act 2005 (MCA) provides a statutory framework for people who lack
capacity to make decisions for themselves, or who have capacity and want to make preparations
for a time when they may lack capacity in the future. The Act makes clear who can take
decisions, in which situations, and how they should go about this. The MCA is accompanied by a
statutory Code of Practice which explains how the Act works. The Code of Practice provides
guidance to everyone who is working with and/or caring for adults who may lack capacity to
make particular decisions.
The MCA introduces a new criminal offence of ill treatment or willful neglect of a person who
lacks capacity. If convicted, the penalties include imprisonment or fines.
The Code of Practice and this policy clearly describe roles and responsibilities for staff when
making decision on behalf of individuals who lack capacity to act or make decisions for
themselves.
2. Purpose of Policy
To ensure staff are aware of and abide by the MCA and Code of Practice.
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To ensure staff are made aware of legal responsibilities
To ensure staff complete correct documentation
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3. Roles and Responsibilities
Management Responsibilities
Chief Executive
The Chief Executive is responsible for determining the governance arrangements of the Hospice
including effective risk management processes. They are responsible for ensuring that the necessary
clinical policies, procedures and guidelines are in place to safeguard patients and reduce risk. In
addition they will require assurance that clinical policies, procedures and guidelines are being
implemented and monitored for effectiveness and compliance.
Director of Care
The Director of Care has overall responsibility for patient safety and ensuring that there are effective
risk management processes within the Hospice that meet all statutory requirements and adhere to
guidance issued by the Department of Health.
Line Managers
Line managers are responsible for ensuring that:
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This policy is made available to all staff within their department
The staff they are responsible for implement and comply with the policy
That staff are updated with regards to any change in the policy
4. Key Principles of the Mental Capacity Act 2005
Having mental capacity means that a person is able to make their own decisions. If a person is
deemed to lack capacity then the person is unable to make a particular decision. To lack mental
capacity means that they would be unable to do one or more of the following things:
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Understand information given to them
Retain that information long enough to be able to make the decision
Weigh up the information available to make the decision
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Communicate their decision – this could be by talking, writing, using sign language or even
simple muscle movements such as blinking an eye or squeezing a hand
The MCA is specifically designed to cover situations where someone is unable to make a decision
because their mind or brain is affected, for example by illness or disability, or the effects of drugs or
alcohol. The type of decisions that are covered range from day to day decisions, such as what to eat
or wear, through to serious decisions about where to live, having an operation or what to with a
person’s finances or property. It may be the case that the person lacks capacity to make a particular
decision at a particular time but this does not mean that the person lacks all capacity to make
decisions at all. It is important that staff are aware that lack of capacity may not be permanent and
assessments of capacity should be limited and decision specific.
Principles
There are five key principles which underpin the fundamental concepts of the MCA.
1. Assumption of capacity: a person must be assumed to have capacity unless it is established
that he/she lacks capacity. The burden of proof as to whether someone lacks capacity falls
on those assessing the person. A tool to assess whether an individual lacks capacity can be
found in Appendix 1
2. Assisted decision-making: a person is not to be treated as unable to make a decision unless
all practicable steps to help him/her to do so have been taken without success. Give all
appropriate help before concluding someone cannot make their own decisions. Evidence of
this support will have to be shown
3. Unwise decisions: a person is not to be treated as unable to make a decision merely
because he/she makes an unwise decision. Accept a person’s right to make what might be
seen as an eccentric or unwise decision
4. Best interest: an act done or decision made under this Act for on behalf of a person who
lacks capacity must be done, or made, in his/her best interests
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5. Least restrictive alternative: before the act is undertaken, 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. Decisions made
should be the least restrictive of their basic rights and freedoms. Decisions must be clearly
recorded.
5. Helping People to make Decisions for themselves
When a patient/client needs to make a decision it must be assumed that the person has
capacity to make the decision in question (Principle 1). Every effort should be made to
encourage and support the person to make the decision themselves (Principle 2) and
consideration of a number of factors to assist in that decision making.
These could include:
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Does the person have all the relevant information to make the decision? If there is a choice,
has information been given regarding the alternatives?
Could the information be explained or presented in a way that is easier for the person to
understand?
Are there particular times of the day when a person’s understanding is better or is there a
particular place where they feel more at ease to make a decision?
Can anyone else help or support the person to understand information or make a choice?
For example a relative, friend or independent advocate?
It must be remembered that if a person makes a decision which is thought to be eccentric or
unwise, this does not necessarily mean that the person lacks capacity to make the decision.
When there is reason to believe that a person lacks capacity to make a decision the following points
must be considered:
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Has everything been done to help the person to make a decision?
Does this decision need to be made without delay? If not, is it possible to wait until the
person does have the capacity to make the decision for themselves?
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If the person’s ability to make a decision still seems questionable then an assessment of capacity
needs to be made
6. Assessing Capacity (Flowchart appendix 1)
The MCA makes clear that any assessment of a person’s capacity must be ‘decision-specific.’ This
means that:
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The assessment of capacity must be about the particular decision that has to be made at a
particular time and is not about a range of decisions
If someone cannot make a complex decision that does not mean that they cannot make
simple decisions
A decision cannot be made that someone lacks capacity based upon their age, appearance,
condition or behaviour alone
An assessment of capacity should not be made without involving family, friends and/or
carers or an Independent Mental Capacity Advocate (IMCA) if one has been appointed. This
will depend on the situation and the decision that has to be made.
7. The Functional Test of Capacity
In order to decide whether an individual has the mental capacity to make a particular decision, a
capacity assessment should be made.
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Decide whether there is an impairment of, or disturbance in the functioning of the person’s
mind or brain (it does not matter whether this is permanent or temporary)
Does the impairment or disturbance make the person unable to make the particular
decision?
The person will be unable to make the particular decision if after all appropriate help and
support to make the decision has been given to them (Principle 2) they cannot:
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Understand information relevant to the decision, including understanding the likely
consequences of making or not making the decison
Retain information for long enough to make the decision
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Use or weigh up that information to arrive at a choice
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Communicate the decision, whether by talking, using sign language or any other
means
Day to day assessments of capacity may be relatively informal. Depending on the level or
seriousness of the decision, specialist or expert opinion may be requested where the decision is
complex or there is a difference of opinion amongst members of the core team.
8. Recording the Decision
The healthcare professional undertaking the assessment/test will record their assessment and its
outcome on the Primrose Hospice pro-forma (Appendix 2) and scan a copy into the patient’s
healthcare record; demonstrating how and why a particular decision was reached using the
assessment criteria.
In these situations staff must document all attempts to help the person to make the decision
themselves and provide evidence of:
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How the person is able/unable to understand the information relating to the decision in
question
Whether the person is able to retain the information, and if their retention is limited,
whether they are able to hold the information long enough to make a decision
How well the person is able to weight the decision in the balance in order to come to a
decision
The ability of the person to communicate the decision where communication is problematic
These records will provide evidence for staff if they face any challenges concerning the decisions
made.
For routine decisions staff are not expected to undertake capacity assessments and hold best
Interest meetings. For these matters it will be sufficient for the judgements about capacity and
best interests to be documented as part of the care planning process.
Each circumstance should be judged on its merit, using professional judgement with support from
the line manager or the care team as appropriate.
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9. Deprivation of Liberty Safeguards (DoLS)
DoLS are part of the legal framework set out in the Mental Capacity Act. They apply to care homes
and hospitals in England and Wales, but it is of note that a judgement on March 19th 2014 by the
Supreme Court in the case of P v Cheshire West and Chester Council widened the scope to include
those in domestic situations, at home with support. The safeguards relate to people aged 18 years
and over who lack capacity to consent to the arrangements for providing them with care or
treatment.
The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS), which came into force on
1st April 2009, provide a legal framework to ensure people are deprived of their liberty only when
there is no other way to care for them safely or safely provide treatment. They were created to
ensure that when a person is deprived of their liberty in a health or social care setting they have
means of challenging that detention, and also to ensure that any deprivation is carried out in the
least restrictive way, and only if it is in that person’s best interests. A deprivation of liberty must
also be properly authorized.
There has been, however, no statutory definition of a ‘deprivation of liberty,’ and so determination
of whether the safeguards are required has to be determined on a case by case basis.
Determining deprivation of liberty
Under the ruling from the Supreme Court the two key questions to ask in determining whether
someone is objectively deprived of their liberty are:
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Is the person subject to continuous supervision and control?
Is the person free to leave?
There are several factors which are not relevant to whether or not an individual is deprived of their
liberty and these include:
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The person’s lack of objection
The reason or purpose leading to a particular placement
The relative normality of the care arrangements being made
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10.Process for applying for a DoLS Authorisation – Eligibility Criteria and the
‘Acid Test’
To be eligible for DoLS the patient must meet all of the criteria below:
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18 years and over
Assessed as suffering from a mental disorder which includes all people suffering from
learning disabilities but excluding people under the influence of alcohol or drugs
Not have any other existing authority for decision making in place i.e. Lasting Power of
Attorney or Advanced Decision (this only applies if the done, deputy or Advance Decision to
Refuse Treatment (ADRT) specifically excludes elements of the treatment plan that
constitutes a deprivation of liberty)
Not be detained under the Mental Health Act or on leave from the Mental Health Act
Need to be deprived of their liberty, in their best interests, to prevent harm to themselves
in a manner that is necessary and proportionate to the risks
There are two further questions which must be asked. These are described as the ‘acid test’:
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Is the person subject to both continuous supervision and control?
And
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Is the person free to leave? (indefinitely and not return)
11.Types of authorisation
Standard – (this cannot be made more than 28 days before it is required)
The Hospice would request a standard authorisation when a plan of care has been agreed that
potentially deprives a patient of their liberties but has not been put into action.
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Urgent – (7 days only)
The ‘managing authority,’ which in practical terms would mean the responsible head of clinical
services at Primrose Hospice at the time (see glossary of terms, Appendix 3), is able to give itself an
urgent authorisation for deprivation of liberty where:
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It is required to make a request to the supervisory body for a standard authorisation, but
believes that the need for the person to be deprived of their liberty is so urgent that
deprivation needs to begin before the request is made, or
It has made a request for a standard authorization, but believes that the need for the
person to be deprived of their liberty has now become so urgent that deprivation of liberty
needs to begin before the request is dealt with by the supervisory body
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In this situation, an urgent authorisation can be made, but it is essential that a request for a
standard authorisation is made simultaneously. Therefore, before giving an urgent authorisation,
the responsible head of clinical services at Primrose Hospice must have a reasonable expectation
that the six qualifying requirements for a standard authorisation will be met.
Forms requesting authorisation are available from Worcestershire County Council.
The supervisory body must conclude the assessment within 21 days.
These processes are designed to prevent arbitrary decisions to deprive a person of liberty and give
a right to challenge deprivation of liberty authorisations.
The deprivation of liberty safeguards mean that a ‘managing authority’ (The Hospice) must seek
authorization from a ‘supervisory body’ (i.e. the relevant CCG) in order to be able lawfully to
deprive someone of their liberty.
Before giving such an authorisation, the supervisory body must commission assessments which are
used to authorize a deprivation of liberty. The assessments are then carried out by a minimum of
two trained assessors: the mental health assessor and the best interests assessor. There are six
assessments:
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Age assessment – which determines if the person is 18 years old or under
Mental Health assessment – which decides whether the person is suffering from a
mental disorder
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Mental Capacity assessment – which determines whether a person lacks the capacity to
consent to receive care or treatment in the particular hospital or care home making the
application for deprivation of liberty
Eligibility assessment – which determines whether the person is, or should be, subject to
a requirement under the Mental Health Act 1983 (in which case they are not eligible for
this process)
Best interests assessment – which determines if there is a deprivation of liberty and
whether this is in the best interest of the person, necessary in order to keep the person
from harm and a proportionate response to the likelihood of the person suffering harm
and the likely seriousness of that harm
No refusals assessment – which determines if the person has refused treatment or made
decisions in advance about the treatment they wish to receive; this assessment also
determines if the authorisation conflicts with valid decisions made on the person’s behalf
by a done of a lasting power of attorney or a deputy appointed for the person by the
Court of Protection
An authorisation will only be granted if all six assessments support the application
12.Applying for a DoLS – Procedure
Staff member identifies that the patient may be being deprived of their liberty.
OR
Patient’s carer or family feel that they are being deprived of their liberty.
MDT asks the following questions:
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Will the person be restricted in such a way as to take away their freedom to do what they
want to do to such an extent that it amounts to a deprivation of their liberty?
Do they believe that the care or treatment being given is in the person’s best interest?
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MDT explore whether the care or treatment could be given in a less restrictive way that does not
deprive the person of their liberty.
MDT decides either:
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that the care or treatment could be given in a less restrictive way that does not deprive the
person of their liberty, OR
that the care or treatment cannot be given without restriction of liberty and the person
cannot be cared for or treated in a less restrictive way that does not deprive the person of
their liberty
Director of Care or deputy takes the DoLS authorisation forward by completing the appropriate
authorisation paperwork/referral.
DoLS co-ordinator arranges for a Mental Health Assessor and Best Interest Assessor to investigate
the case.
If authorisation is not granted the managing authority (Hospice) must look at an alternative plan of
care that is less restrictive.
If a deprivation of liberty authorisation is granted the patient must have a Relevant Persons
Representative (RPR) who is appointed to support the patient and look after their interests. This
could be a family member or a friend.
If the patient has no-one to represent them, an Independent Mental Capacity Advocate (IMCA) is
appointed by the supervisory body. The Hospice and the supervisory body make regular checks to
make sure the authorisation is still necessary and
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remove the authorisation when no longer necessary
provide the RPR with information about care and treatments
A DoLS authorisation can last for up to 12 months. The supervisory body will determine how
regularly the authorisation is to be reviewed.
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13.CQC Notification
All DOLS applications and their outcomes are subject to a statutory notification to the Care Quality
Commission (CQC) and this is the responsibility of the Director of Care (Registered Manager).
14.Deprivation of Liberty Safeguards and Appeals to the Court of Protection
If there is an objection to an intention to apply DoLS the Managing Authority must refer the case to
the Court of Protection (assuming that all attempts at local resolution have been unsuccessful). An
appeal may be lodged by the patient (or someone acting on their behalf) even before a decision is
issued or a Standard Authorisation has been reached.
Depending on the circumstances, the Court of Protection may decide not to consider the appeal but
in other circumstances a hearing must be convened. A fee is normally charged for appeal to the
Court although, depending on the circumstances, this may be waived. Information in respect of
submitting an appeal to the Court of Protection, application fees, the waiving and/or remittance of
fees and the availability of Legal Aid can be obtained from:
The Office of the Public Guardian
Archway Tower
2 Junction Road
London N19 5SZ
15.Best Interests
If an individual is assessed as lacking capacity in a specific area, one of the key principles of the Act
is that any act done for, or any decision made on behalf of that person, must be done in the
person’s best interest. This applies to whoever is making the decision.
It is recognised that most significant decisions regarding someone who lacks capacity will be made
in the context of a multi-disciplinary discussion. However, the ‘decision maker’ is the person who is
likely to be proposing to take action, and is likely to be a nurse, social worker/care manager or
doctor.
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The Mental Capacity Act sets out a checklist of factors to be considered by the decision maker whilst
considering the best interests of the person. Factors to be considered are:
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No decision is made solely on the basis of a person’s age, appearance or other aspects of
behavior that might lead others to make unjustified assumptions
All relevant circumstances relating to the decision, including looking at other options
Likelihood of regaining capacity – if possible could the decision be delayed?
As far as possible encourage the person to participate in the decision
If the decision concerns life-sustaining treatment then the decision maker must not be
motivated by a desire to bring about their death
Where possible ascertain the person’s past and present wishes and feelings
Where possible ascertain the person’s beliefs and values (religious, cultural or moral) which may
influence the decision
As far as possible consult other people, where appropriate, to take account of their views
regarding what would be in the person’s best interests. This includes anyone formerly named by
the person to be consulted, those involved in caring for the person, those interested in their
welfare, attorney/done appointed by a Lasting Power of Attorney or any Court Deputy
appointed by the Court of Protection
Consultation with Independent Mental Capacity Advocate (IMCA) is required. The decision
maker has a duty to instruct an IMCA where the person is un-befriended or there is no Lasting
Power of Attorney to consult and a major decision needs to be made in the person’s best
interest. Such decisions might include major operations that may confer benefit but have
significant risks, life sustaining treatments e.g. PEG feeding or the decision around permanent
placement.
Decisions must be clearly recorded in the patient’s healthcare record (see Appendix 2)
16.Disputes Process
There are likely to be occasions when someone may wish to challenge the results of an assessment
of their capacity, their best interests or decisions or actions made on their behalf. The challenge
may come from the individual who is said to lack capacity, or by someone acting on their behalf
such as a relative or advocate.
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The first step is to raise the matter with the person who carried out the assessment, decided on
their best interests or made decisions or actions on their behalf and determine the reasons why
they have made such a decision and provide objective evidence to support this. This is discussed
with the person raising the challenge with a view to resolving the issue.
Other steps which can be taken include:
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Getting a second opinion from an independent professional or another expert in assessing
capacity
Using the local complaints process
Using mediation
Setting up a case conference
Advocates can be involved in any of the steps taken to resolve a disagreement. Members of
staff should discuss with their line manager to seek further guidance. If a disagreement cannot
be resolved, the person who is challenging the assessment may be able to apply to the Court
of Protection.
17.Restraint
The Act allows for the lawful restraint of a person lacking capacity. Restraint is defined as ‘the use
or threat of force to make a person do something they are resisting or the restriction of liberty of
movement, whether or not the person resists.’ Within this definition, restraint could be verbal or
physical and may involve threatening a person with action, holding them down or locking them in a
room. It also includes chemical restraint such as sedation.
The following criteria need to be met and well documented:
1. Evidence that the person lacks capacity (completion of the capacity assessment) and it will
be in the person’s best interest for the act to be done, and
2. It is reasonable to believe that it is necessary to restrain the person to prevent harm to
them, and
3. The restraint is a proportionate response to the likelihood of the person suffering harm
and the seriousness of that harm
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18.Independent Mental Capacity Advocate
The aim of the IMCA service is to provide independent safeguards for people who lack capacity to
make major, potentially life-changing decisions and, at the same time as such decisions need to be
made, have no-one else (other than paid staff) to support or represent them or be consulted.
An IMCA must be instructed, by the Local Authority or an NHS body, and then consulted, for people
lacking capacity that are un-befriended i.e. they have no family or friends who would be
appropriate to contact and no-one other than paid staff to support them. For further guidance on
‘un-befriended’ see Sections 10.74-10.80 of the Code of Practice.
The IMCA’s role is to support and represent the person who lacks capacity. IMCAs have the right to
be provided with access to relevant health and social care records.
Any information or reports provided by an IMCA must be taken into account as part of the process
of determining whether a proposed decision is in the person’s best interests.
It is vital that clear, accurate and timely identification of the need for an IMCA is made in all cases.
Staff should consider issues of mental capacity at an early stage of every assessment, and whenever
IMCA-qualifying interventions are indicated.
If there is any doubt about a person’s capacity to make the decision, the assessment of their
capacity should be recorded to ensure clear decision-making and timely instruction of an IMCA
where necessary.
19.Lasting Powers of Attorney (LPA)
The Mental Capacity Act replaces the Enduring Power of Attorney (EPA) with the Lasting Power of
Attorney (LPA). An LPA allows people over the age of 18 to formally appoint one or more people to
look after their health, welfare and/or financial decisions, if at some time in the future they lack the
capacity to make these decisions for themselves.
The person making the LPA is called the donor and the person(s) appointed are known as
attorney(s).
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An LPA gives the attorney authority to make decisions on behalf of the donor and the attorney has
a duty to act or make decisions in the best interests of the person who has made the LPA.
There are two different types of LPA:
1. A Personal Welfare LPA is for decisions about both health and personal welfare
2. A Property and Affairs LPA is for decisions about financial matters only
The introduction of LPAs for property and affairs means that no more EPAs can be made, but the
MCA makes transitional provisions for existing registered EPAs to continue to be used. Unregistered
EPAs will have to be registered before an attorney can continue to use it.
When a person makes and LPA they must have the capacity to understand the importance of the
document ad the power they are giving to another person.
Before an LPA can be used it must be registered with the Office of the Public Guardian. Without
registration an LPA cannot be used at all.
A Personal Welfare Attorney has no power to consent to, or refuse treatment, at any time or about
any matter when the person has the capacity to make the decision for him or herself.
If the person in your care lacks capacity and has created a Personal Welfare LPA, the attorney is the
decision maker on all matters relating to the person's care and treatment. Unless the LPA specifies
limits to the attorney’s authority the attorney has the authority to make personal and welfare
decisions and consent to or refuse treatment (except life-sustaining treatment) on the donor’s
behalf. If a donor wants their attorney to make decisions about ‘life-sustaining treatment’ they will
need to specify this in the personal welfare LPA form.
The attorney must make these decisions in the best interests of the person lacking capacity. If there
is a dispute that cannot be resolved i.e. between the attorney and the doctor it may have to be
referred to the Court of Protection.
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20.Advance Decisions to refuse treatment
Statutory rules with clear safeguards should confirm that people may make a decision in advance to
refuse treatment if they should lose capacity in the future. Where this involved life-sustaining
treatment, the advance decision must specify the treatment and circumstances under which they
refuse treatment and a statement must be put in writing, signed and witnessed and kept in medical
records.
If the person has made an advance decision relating to the decision in question, this should
override this section of the Act and therefore, the need to carry out a best interests assessment.
Advance Decisions can only be made by a person who has capacity and is 18 years or over.
21. Court of Protection
A Court of Protection makes decisions for people who lack capacity including:
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Whether a person has capacity where this is under dispute
Making financial or welfare decisions
Whether an EPA or LPA is valid
Appointing deputies to make decisions
Removing deputies or attorneys who fail to fulfil their duties
In achieving this, it must always follow the statutory principles set out in Section 1 of the Act and
make decisions in the best interests of the person concerned. The Court of Protection will have the
same powers, rights and privileges as the High Court and will deal with matters previously under
High Court jurisdiction. The new Court of Protection is particularly important in resolving disputed
or complex cases.
22.Court Appointed Deputies
The Act provides for a system of court appointed deputies. In the majority of cases, deputies will
either be a relative or someone well known by the person who lacks capacity, but in some cases
may be someone independent of the situation.
Mental Capacity Act including Deprivation of Liberty Safeguards
No:
Ref: HM0005.1
Page 17 of 18
Revision No.
Date of Implementation:
Revision due by:
0
10/15
10/18
Primrose Hospice
Deputies will be able to make decisions on welfare, healthcare and/or financial matters as
authorised by the Court, but will not be able to refuse or consent to life-sustaining treatment. As in
the case of LPAs, the welfare and financial responsibilities may be combined or shared. Deputies
will only be appointed where future or ongoing decisions are required and the Court cannot make a
one-off decision to resolve the issue.
23.Public Guardian
The role of the Public Guardian is to protect people who lack capacity from abuse and is supported
by staff in the Office of the Public Protection. The Public Guardian will set up and maintain a
register of LPAs, EPAs and court appointed deputies. They will supervise deputies appointed by the
Court and provide information to help the Court make decisions. They will also work together with
other agencies, such as the police and social services to respond to any concerns raised about the
way in which an attorney or deputy is operating.
As part of the initial assessment , and as near as possible to the first contact meeting with all
patients, it should be documented as to whether there is any LPA, Court of Protection or Advance
Decisions in place.
24.Training
All clinical staff will undergo training in the Mental Capacity Act including Deprivation of Liberty
Safeguards.
All clinical staff will undergo training in restraint.
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No:
Ref: HM0005.1
Page 18 of 18
Revision No.
Date of Implementation:
Revision due by:
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APPENDIX 1
Assessment of mental capacity / determination of best interests
1. Assessment
Patient’s name…………………………………………………………………………………………………………………………………
Address …………………………………………………………………………………………………………………………….
…………………………………………………………………………………………………………………………………………..
DOB………………………………………………………… NHS No ……………………………………………………………
Date of assessment…………………………………………………………………………………………………………….
Date of any previous assessment of capacity……………………………………………………………………..
Details of decision in relation to which capacity is being assessed………………………………………
……………………………………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………………………………
The patient currently has a mental disorder resulting in
impairment / disturbance of the mind or brain
yes
no
if yes, give a diagnosis and brief description
………………………………………………………………………………………………………………………………………..
………………………………………………………………………………………………………………………………………..
…………………………………………………………………………………………………………………………………………
In relation to the above decision can the service user?:
Understand information relevant to the decision?
Yes
no
Retain information long enough to make the decision?
yes
no
Weigh the information in the balance in order to make
a decision?
Yes
no
Communicate their decision?
Yes
no
Comments ………………………………………………………………………………………………………………………..
………………………………………………………………………………………………………………………………………….
………………………………………………………………………………………………………………………………………….
Where the answer to any of the above questions is no, have any steps been taken to assist the
person to make the decision? Please give details and the outcome of any such assistance……….
……………………………………………………………………………………………………………………………………………….
………………………………………………………………………………………………………………………………………………..
…………………………………………………………………………………………………………………………………………………
Note that if the patient fails the test at any point, they lack capacity in relation to the decision at
the time of the assessment
Is the patient likely to regain capacity?
Yes
no
If yes, the assessment of capacity should be repeated at a future point, so long as the decisionmaking can wait.
Suggested time interval before further assessment required ……………………………………………….
2. Referral to IMCA
Is the patient eligible to be referred to an IMCA?
Yes
no
If yes, has the patient been referred?
Yes
no
If yes, date of referral ……………………………………………………………………
Name of IMCA service……………………………………………………………………
3. Determination of Best Interests
If the outcome of the assessment is that the patient lacks capacity, it may be possible to treat / act
in their best interests. To help determine this:
Have the patient’s past and present wishes and feelings
been taken into account as far as possible?
Yes
no
Has account been taken of the patient’s known
beliefs and values?
Yes
no
Have the patient’s relatives/friends been consulted?
Yes
no
Is there an IMCA or advocate?
Yes
no
If yes, have their views been taken into account?
Yes
no
If there is an advance decision/LPA/deputy appointed
by the Court of Protection, have they been consulted?
Yes
no
Is the person subject to a DoLS authorisation?
Yes
no
n/a
Proposed course of action and reasons:
……………………………………………………………………………………………………………………………………….
……………………………………………………………………………………………………………………………………….
………………………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………………………
Completed by:
Name…………………………………………………………………………Position…………………………………………
Date …………………………………………………………………………..
Appendix 2 – Flowcharts
PRIMROSE HOSPICE
ASSESSMENT OF CAPACITY FLOWCHART
no
Does the patient have an impairment of, or a disturbance in the functioning of,
the mind or brain? e.g. brain metastases, dementia, delirium, severe distress
Reassess
yes
no
Is the patient able to understand the information relevant to this specific decision
yes
Is the patient able to retain that information
no
yes
Is the patient able to weigh that information as part of the process of making
this specific decision?
no
yes
Is this patient able to communicate this specific decision (whether by
no
talking, using sign language or any other means)?
yes
Patient has capacity
Patient lacks capacity
Provide support to enhance capacity
If there is potential for recovery of
capacity or if capacity fluctuating
Treat reversible causes
Appendix 2 - Flowcharts (continued)
THEY DO NOT HAVE CAPACITY
RECORD
YES?
Do they have a RELEVANT and APPROPRIATE?
 Lasting Power of Attorney / Enduring Power of
Attorney (PAV/EPA)
 Advance Decision
 Or statement of preference, to inform decision
Act accordingly
RECORD
YES?
NO? Or you have
concerns
RECORD that none of
these exist or that
you have concerns?


Consider whom to consult:
Do they have relatives or friends who are aware of their wishes
NO?
Discuss with them the
Best Interests Decision
RECORD
Is there a dispute or lack
of agreement?
RECORD
Best Interests Decision
RECORD
Consider Best Interests
Conference / Meeting
Refer to IMCA
RECORD
No friends or family, or
Adult protection concern
RECORD