Vulnerable patients - who decides on their care?

The Mental Capacity Act 2005 has been amended by the Mental Health Act 2007 to codify in statute the common law provisions intended to safeguard the interests of vulnerable patients.

The Mental Capacity Act was relevant to anyone who - even temporarily - lacked capacity to make decisions for themselves, as well as the growing number of people opting to make advance decisions (known as living wills) about their future treatment.

The Mental Capacity Act puts advance decisions on a statutory footing. A person with capacity can define in writing their future treatment if they lose capacity. They cannot require that a particular treatment be given but can state which treatments should not be given in specific circumstances. Professionals need to ascertain the validity of such advance directives and determine whether they apply to the specific circumstances that have arisen.

Power of attorney

Perhaps the biggest change under the Mental Capacity Act is that anyone who currently has capacity can create a lasting power of attorney, which will allow someone else to make decisions about their health and social welfare in the future.

Under the old law, patients could only allow someone else to make decisions about their finances and property, so this is a major departure that recognises the increasing number of people living for longer periods without being capable of making decisions themselves. This provision reflects the belief that in a civilised society there should be a proper regard for the wishes of those who lose capacity.

The statutory principles remain largely the same as those at common law:

• capacity is presumed;

• all practical steps must be taken to assist the person to make their own decision;

• an unwise decision is not indicative of a lack of capacity;

• acts on behalf of someone who lacks capacity must be taken in their best interests;

• the least restrictive option must be chosen.

Assessing capacity

Capacity relates to the specific decision that needs to be made and when it needs to be made. If the patient has fluctuating capacity, a decision can be deferred to a time when they are lucid and when they have some assistance to make the decision for themselves.

This could involve allowing more time to make a decision; getting someone else to talk through the options; drawing diagrams; having several short discussions instead of just one; or getting the assistance of an independent mental capacity advocate, family member or friend.

Be mindful that many ill or elderly patients become too tired and unable to concentrate later in the day but are perfectly able to do so in the mornings. Medication may affect capacity but wears off a couple of hours later. A patient who is not sleeping properly may otherwise be capable if only they could get some rest. There may be difficulty with understanding a different accent or unfamiliar colloquialisms. The patient may be flummoxed by technical terminology where an explanation in simpler, non-technical language would be understood.

Be wary of assuming that a patient who makes a "bad" or "foolish" decision thereby shows he lacks capacity.

Lasting powers of attorney are going to become more important once those made since 1 October 2007 start to come into effect. Healthcare professionals and managers will need to ensure these are valid by checking that they were registered with the public guardian before the person became mentally incapacitated.

Even if there is a valid lasting power of attorney, the attorney cannot make a decision if the patient is capable of making the relevant decision at the relevant time. The patient can continue to make decisions as long as they have the mental capacity to do so, but each decision needs to be assessed.

With increasing numbers of vulnerable and incapacitated patients entering the healthcare system, the detailed workings of this new legislation will become a key part of daily practice.