British Journal of Community Nursing
Vol 13, No 6
dle phobia. The Courtof Appeal held that thepanic instilled by thisneedle phobia drove soforcibly into the mindof the patient, that shewas unable to make adecision and temporar-ily lacked the capacityto make this decision.The procedure couldtherefore proceed in her best interests. Once the womanrecovered from the anaesthetic she once again had decisionmaking capacity and was able to make treatment decisionsonce again for herself and her new born son.To determine how far an impairment or disturbance isaffecting the decision making ability of a person the MentalCapacity Act 2005 requires district nurses to consider whether the patient is able to;
Understand the information relevant to the decision or
Retain that information or
Use or weigh that information as part of the process of making the decision or
Communicate the decision (whether by talking, usingsign language or any other means).(Mental Capacity Act 2005, section 3).Where a district nurse reasonably believes that the patientfails on any one of these four issues then they would be ableto conclude that the patient lacks capacity for this particular decision. For example, in X NHS Trust
T (Adult Patient:Refusal of Medical Treatment)  a woman harmedherself by cutting and then required a blood transfusion toraise her haemoglobin to non-critical levels. She refusedarguing that her blood was evil and would contaminate thetransfused blood. The court held that T lacked the decisionmaking capacity to refuse the blood because the distur-bance to her mind affected her ability to understand theconsequences of treatment and her ability to use or weighthe treatment information. The court ordered that it wouldbe lawful to give the blood in her best interests.
Assessing decisionmaking capacity in practice
When assessing the decision making capacity of their patients, district nurses must apply the provisions of theMental Capacity Act 2005 in an accurate and timely fash-ion. District nurses have a duty to have regard to the codeof practice to the Mental Capacity Act 2005 whenever they make a decision with regard to an incapable patient(Department for Constitutional Affairs, 2007). Districtnurses must not only consider the two stage test of capacityset out in the Act, they must also consider and apply thestatutory principles set out under section 1 of the Act.District nurses may find it helpful in practice to setout the assessment of decision making capacity as a seriesof stages to ensure they adopt a thorough methodicalapproach that meets the requirements of the Act and itscode of practice.
. shows a flowchart setting out thestages of the assessment.
The trigger stage
The first statutory principle of the Mental Capacity Act2005 requires that district nurses must assume that patients16 years or older have capacity to make consent to treat-ment decisions unless they can show otherwise. It is there-fore not necessary for a district nurse to assess the capacityof each and every patient. It is only where a doubt arisesabout the person’s ability to make a particular decisionthat an assessment of capacity is triggered.The Mental Capacity Act 2005, section 2 makes it clear that decision making capacity is a test of understandingand so district nurses cannot simply assume a patientlacks capacity because of concerns over their age, appear-ance, condition or behaviour. These concerns will onlytrigger an assessment of the person’s capacity to make aparticular decision.
The practical support stage
The 2005 Act recognizes that some people require assist-ance to help them understand treatment information andmake a decision. The second statutory principle of the Acttherefore requires district nurses to take practical steps toassist a person to make a decision. The code of practice tothe Act suggests that such steps might include,
Using a different form of communication such as non-verbal communication
Providing information in a more accessible form such asphotographs, drawings, or tapes
Treating a medical condition which may be affecting theperson’s capacity or
Having a structured programme to improve a person’scapacity to make particular decisions such as helping aperson with learning disabilities to learn new skills.
Waiting until the effect of drink or drugs have worn off before requiring a decision to be made.(Department for Constitutional Affairs 2007 at para-graph 2.7).The steps must be practical in the circumstances of thecase and a district nurse must balance the practicality of thesupport with the urgency and seriousness of the care or treatment required by the patient.
The diagnostic threshold stage
The 2005 Act is called the Mental Capacity Act to empha-size that an issue of decision making capacity can onlyoccur where there is an impairment or disturbance to thefunction of the mind or brain. A district nurse must there-fore be able to identify a disturbance to the function of themind or brain before they are able to conduct an assessmentunder the Act. Where no disturbance or impairment to themind or brain can be identified then no further action canbe taken under the Mental Capacity Act 2005. The districtnurse may consider the person’s decision unwise but adultswith decision making capacity have the right to makeunwise decisions and this is enshrined in the third statutoryprinciple of the Act.