Mental Capacity Act (2005)

Applies to all over 16’s


  1. Everyone is presumed to have capacity – until a lack of capacity has been established
  2. All practical efforts have been made to help patient make a decision
    • Explain decision and options as clearly and concisely as possible (be flexible)
    • Make every effort to help the person understand (language line, writing, etc.)
    • Are there others who might help them understand? (nursing, medical, family, freinds)
  3. People are free to make an unwise decision
  4. Anything done under the act MUST be in the patients best interest
  5. Carefully consider what is the least restrictive option


Question 1

Does the person have an impairment or disturbance in the functioning of the mind or brain?

(This maybe temporary or permanent, medical or psychological)

Question 2 – (if you answer yes to Q1)

Can the patient :

  1. Understand the information relevant to the decision?
  2. Retain the information long enough to make a decision?
  3. Weigh up the consequences of making the decision? – Remember you decide if you think they are weighing the dission up appropriately.
  4. Communicate their decision by any means?

If the patient can not demonstrate ANY of these – they LACK CAPACITY

Best interest decision making

When under the Mental Capacity Act, all decisions made by the practitioner should be made in the patients best interest, and be least restrictive. ( N.B. least restrictive is an overall term, for example, sedation a person to have a CT head is very restrictive however, keeping them in hospital for 72 hrs for regular neuro obs would be more so.)

When making best interest decisions the views of the patient, family, and carers should be considered, and time devoted to this. However, in the Emergency Situation this will be limited by necessity.

Things to remember

  • This only applies to this decision at this time (capacity can vary)
  • Fully document your assessment
  • Any doubt involve seniors (early)
  • Self-discharging – complete self discharge paper work to ensure capacity(this is for your safety too)
  • Restraint should be appropriate and as minimal as possible(ABD guide), restraint is potentially lethal

NICE – Decision making & Mental Capacity Act 2018

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