Clinical update

New NICE guideline on decision-making for those who lack capacity

NICE guideline helps healthcare staff apply the principles of the Mental Capacity Act 2005

NICE guideline helps healthcare staff apply the principles of the Mental Capacity Act 2005

Picture: Roy Mehta

Essential facts

The Care Quality Commission estimates that around two million people in England and Wales may be unable to make certain decisions due to illness, injury or disability. The Mental Capacity Act 2005 aims to empower and protect these people, and the National Institute for Health and Care Excellence (NICE) guideline, Decision-Making and Mental Capacity puts these principles in practice. It addresses decision-making in people 16 years and over who may lack capacity now or in the future.

What’s new

The guidance was commissioned by the Department of Health after concerns about the implementation of the 2005 act were raised by the Care Quality Commission and a report from the Lords Health Select Committee. The CQC reported earlier this year that some mental health patients continue to experience care that does not protect their rights. It found no improvement in care planning, and that one in ten records showed people had not been informed of their legal rights on admission.

The new NICE guideline says staff need training on how to apply the essential principles of the act. These principles include assuming a person lacks capacity unless it is established otherwise, and not treating somebody as unable to make a decision unless all practical steps have been taken without success. A person should not be treated as unable to make a decision because they make an unwise one.

The importance of advance care planning for those who could lose capacity and how to support someone to make decisions is emphasised.

When it comes to supporting decision-making, healthcare staff should find out how the person wants to be supported, take a personalised approach and build a strong relationship with them. A record should be made of the decision-making process and shared with the patient.

The NICE guideline coincides with an ongoing parliamentary scrutiny of The Mental Capacity (Amendment) Bill.

Focus of guideline

The guideline is focused on four key areas: advance care planning, supporting decision-making, assessment of mental capacity to make specific decisions, and decision-making in the best interests of individuals who are assessed as lacking the capacity to decide.

Putting the guideline into practice

Pointers to help organisations implement the guideline include: raising awareness through routine communication channels; identifying an interested lead to champion the guideline and motivate others; undertaking a baseline assessment in relation to recommendations to determine possible gaps in service provision; establishing data requirements to enable improvement to be measured; developing and implementing an action plan; and reviewing and sharing progress.

Assessing a person’s mental capacity

Factors that the guideline recommend assessors to be aware of include: the decision to be made; whether an inability to decide is caused by any functional impairment in the person’s mind or brain; options available to the person in relation to the decision; relevant information needed by the person to consider their options and decide; how to introduce and conduct the assessment in a respectful, collaborative, non-judgmental way that preserves the person's dignity; and how to identify the steps a person is unable to carry out even with all practicable support.

Implications for nurses

As a starting point, assume capacity unless there is evidence to suggest an assessment is required.

When giving information about a decision to the person it must be accessible, tailored to their needs and sufficient for someone to make an informed choice. It should include tools such as visual, hearing and communication aids as appropriate.

Practitioners supporting a person's decision-making should build and maintain a trusting relationship with the person they are supporting.

Advance care planning should be provided to anyone at risk of losing their capacity.

Unless it would be contrary to the person's best interests to do so, health and social care practitioners should work with carers, family and friends, advocates, attorneys and deputies, to find out the person's preferences in relation to the specific decision.

Expert comment

Chris Lucas, a learning disability nurse, associate Trainer for Edge Training and a member of the guideline committee

‘This guideline helps healthcare staff involved in helping people who have capacity to make decisions and keep people who may lack capacity central to the decision-making process.

'It helps apply the principles of the Mental Capacity Act 2005, which states that staff must assume that someone has capacity unless an assessment demonstrates that they haven’t and that, because someone makes a decision that appears unwise, it shouldn’t be assumed that they lack capacity.

‘The guideline specifies that factors such as undue influence or feeling overwhelmed by the suddenness and seriousness of a decision does not mean that someone lacks capacity – it must be established that it’s due to an impairment of the mind or brain function. It recommends how an effective mental capacity assessment is done.

‘Other recommendations include the use of services such as speech and language therapy and clinical psychology to assist decision-making in people with complex needs, and the use of specific, tailored information and visual aids, as appropriate. It also provides advice on the role that carers, family, friends and independent mental capacity advocates can have in helping people to reach decisions.’

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