What is capacity?
Capacity refers to a person’s “ability to understand, at the time a decision is to be made, the nature and consequences of the decision in the context of the available choices at that time (issue specific and time specific)”.
What this means in practice is that:
- Even though a person may lack capacity in respect of a decision on a particular matter at a particular time, this does not prevent him/her from being regarded as having capacity to make decisions on the same matter at another time. (Time Specific)
- The fact that a person lacks capacity to make a decision on a particular matter does not prevent him/her from being regarded as having capacity to make decisions on other matters. (Issue Specific)
- An unwise decision does not indicate a lack of capacity
- The fact that a person is able to retain information for short period only does not prevent him/her from being regarded as having capacity to make the decision.
Under the Act a person will be presumed to have capacity until proven otherwise.
There is a legal duty on healthcare professionals to provide information in an accessible way that is tailored to the needs of the individual in order to support them in making a decision.
How to assess capacity
A person lacks capacity to make a decision if he/she is unable to:
- Understand information relevant to it
- Retain it for long enough to make a voluntary choice
- Use it or weigh it as part of the decision making process
- Communicate the decision by whatever means
An example of how to establish the person’s understanding of the decision they are being faced with is as follows:
Ask: “Tell me what your understanding about X (particular issue), and the decision you are being asked to make about it?”
Listen: to the words, the feelings and watch the body language
Explain: “Would you like me to explain X again to you?” (explain, inform, clarify)
Check understanding: paraphrase, summarise, reflect back to check understanding & information retention
Tell me: “Tell me what is your understanding now about X?” (listen again)
When assessing capacity it is important to:
- Establish if the person has a reasonable understanding of possible foreseeable consequences
- Ensure the person has voluntary choice and the ability to weigh up the information and options
- Clarify, with the person, if there is anyone influencing their decision