1.5 Explain what is meant by mental capacity in relation to advance care planning

This guide will help you answer 1.5 Explain what is meant by mental capacity in relation to advance care planning

Mental capacity within health and social care refers to a person’s ability to make their own decisions. In the context of advance care planning, it is about whether a person can understand, retain, weigh up, and communicate choices about future care and treatment.

Advance care planning is a process where a person makes decisions about their future care, often for a time when they may not be able to express their wishes. This links closely with mental capacity, as a person must have capacity to make these decisions at the time of planning.

If a person has mental capacity, they can create advance statements or advance decisions, such as an Advance Decision to Refuse Treatment (ADRT) or appoint a Lasting Power of Attorney (LPA) for health and welfare. If a person does not have mental capacity, these decisions must be made in their best interests, following the Mental Capacity Act 2005.

The Legal Framework

In the UK, the Mental Capacity Act 2005 sets out how to assess capacity and what to do if a person lacks it. It applies to people over the age of 16.

The law highlights five key principles:

• Assume a person has capacity unless proven otherwise.
• Do not treat someone as unable to decide unless all possible support has been given.
• A person should not be treated as unable to decide solely because they make a choice others think is unwise.
• Any decision made on behalf of someone without capacity must be in their best interests.
• Choose the option that least restricts the person’s rights and freedoms.

These principles apply directly to advance care planning. Workers must make sure the person making the plan understands what they are deciding and has full information.

Decision-Making and Capacity

Having mental capacity means a person can:

• Understand the information needed for the decision.
• Remember that information long enough to decide.
• Think about the pros and cons.
• Communicate their choice by talking, writing, sign language, or other means.

Capacity can change over time. Some people may have capacity for some decisions but not for others. For example, a person with early-stage dementia may be able to decide where to live but not understand complex medical treatment options.

In advance care planning, capacity must be assessed at the time of making the plan. This ensures that the plan reflects the person’s real wishes.

Support to Make Decisions

The law says workers must give as much help as possible to support decision-making before concluding someone lacks capacity. This support may include:

• Giving information in simple language.
• Using pictures or diagrams.
• Providing a quiet space without distractions.
• Allowing extra time.
• Involving family or friends for support.

This could mean breaking down complex medical information into smaller steps so the person can fully understand. The aim is to help them make their own decision wherever possible.

Advance Statements

An advance statement sets out a person’s wishes, beliefs, and values. It covers things like where they want to be cared for, dietary preferences, religious practices, or who they want involved in decisions.

To make an advance statement valid, the person needs mental capacity at the time. If they later lose capacity, the advance statement serves as guidance for those making decisions in their best interests.

Advance statements are not legally binding, but they help guide care in line with the person’s values.

Advance Decision to Refuse Treatment

An Advance Decision to Refuse Treatment (ADRT) is a legally binding document. It lets a person refuse specific medical treatments in the future, including life-sustaining treatment.

For an ADRT to be valid the person must:

• Have mental capacity when they make it.
• Be over the age of 18.
• Give clear and specific details about the treatments they wish to refuse.
• Sign and date it.
• Have it witnessed if it relates to life-sustaining treatment.

The need for mental capacity is critical. If there is doubt about whether capacity was present when an ADRT was made, health professionals may not be able to follow it.

Lasting Power of Attorney for Health and Welfare

A person with mental capacity can appoint someone they trust as a Lasting Power of Attorney (LPA) for health and welfare. This allows that person to make decisions about care and treatment if capacity is lost in the future.

When making an LPA, the donor (person granting power) must understand:

• What powers they are giving.
• When these powers take effect.
• The possible consequences of decisions made by their attorney.

A legal process verifies capacity during creation of an LPA. Without capacity, the appointment cannot be made.

Loss of Capacity During Advance Care Planning

If a person loses capacity part-way through making a plan, the worker must stop the process and reassess. They should use the parts already completed, if valid, and involve family, advocates, and professionals in making best interest decisions for the rest.

Plans made without mental capacity at the time are not valid and may not be followed.

Best Interest Decisions

When a person lacks mental capacity, decisions about their care must be made in their best interests. This involves:

• Considering past wishes and feelings.
• Listening to those who know the person well.
• Looking at beliefs and values the person held when they had capacity.
• Choosing options that give the best quality of life.

Documentation is important. Workers should record why the person was judged to lack capacity, the information considered, and why the decision is in their best interests.

Fluctuating Capacity

Some people have fluctuating capacity, meaning their ability to decide changes over time. This may be due to mental health conditions, medication, fatigue, or illness.

In advance care planning, workers should, where possible, time discussions for periods when the person has full capacity. If the person cannot currently decide, but is likely to regain capacity soon, the planning should be delayed.

Assessing Mental Capacity

Assessment is decision-specific. A person may have capacity to decide on daily routines but not on complex medical treatment.

The assessment should consider:

1. Can the person understand the information?
2. Can they keep that information long enough to decide?
3. Can they weigh up the information and the outcomes?
4. Can they communicate the decision?

Any failure in one of these steps may mean the person lacks capacity for that decision.

Professional Responsibilities

Health and social care workers have a duty to:

• Recognise when capacity may be in doubt.
• Support the person to decide where possible.
• Record all assessments and decisions.
• Follow legal and organisational policies.

Mental capacity is central to advance care planning, as plans made without it may not be valid or respected.

Ethical Considerations

Respect for autonomy is a key value in health and social care. Autonomy means allowing people to make their own choices about their lives and bodies.

Advance care planning upholds autonomy by ensuring people can set out their wishes when they have capacity. Respecting these plans later shows respect for their identity and dignity.

There can be tension if a person’s current behaviour appears to conflict with past wishes in a plan. In such cases, capacity must be reassessed to decide whether to follow the plan or the new expressed wishes.

Keep Accurate Records

Clear, accurate records help protect both the person and the professionals involved. They show that capacity was assessed, information was given, and decisions were documented properly.

When recording:

• Note the date and time of capacity assessment.
• Record who was present.
• Describe the information given and how it was explained.
• Provide reasons for conclusions on capacity.
• Include any signed documents such as ADRTs or LPAs.

Good records are vital if there are later challenges to the validity of the plan.

Factors Affecting Capacity

Capacity can be affected by many factors, such as:

• Dementia.
• Learning disabilities.
• Brain injury.
• Mental health conditions.
• Confusion caused by infection.
• The side effects of medication.
• Intoxication from alcohol or drugs.

Workers must be alert to temporary causes of capacity loss, as these may improve, making advance care planning possible later.

Balancing Safety and Independence

Supporting someone to plan their future care requires both protecting them and respecting their rights. Workers must avoid assuming lack of capacity simply because they disagree with the person’s choice.

A person might choose an option that carries risk, such as refusing certain treatments. If they have capacity, that choice should be respected, even if professionals or family members disagree.

Working with Families and Advocates

Families often have valuable knowledge about a person’s wishes and values. Involving them can help in assessing capacity and in making or respecting plans.

Independent Mental Capacity Advocates (IMCAs) must be involved when a person without capacity has no family or friends to speak for them. The IMCA supports the person’s rights and helps ensure decisions reflect their values.

Training and Ongoing Learning

Staff must have training in the principles of the Mental Capacity Act and in capacity assessment. This includes knowing how to give information, communicate effectively, and recognise when to seek further assessment from specialists.

Confidence in assessing capacity leads to better quality advance care plans and greater respect for the person’s rights.

Final Thoughts

Advance care planning is a way for people to make their wishes clear for future care and treatment. Mental capacity is the foundation of this process. Without capacity, plans cannot be validly made, and decisions will need to be made in the person’s best interests.

By understanding the law, supporting decision-making, and recording the process clearly, workers can help people express their preferences while they still have capacity. This protects their autonomy and ensures care is provided in line with their values and beliefs, even if they lose the ability to speak for themselves later.