Policy briefing

NICE publishes new mental capacity guideline

After concerns about the Mental Capacity Act 2005, NICE issues a guideline on decision-making for over 16s

Following concerns about the Mental Capacity Act 2005, NICE issues a guideline on decision-making for over 16s

People must be assumed to have capacity, unless a lack is established. Picture: Alamy

Essential facts

According to the Care Quality Commission (CQC), around two million people in England and Wales may lack the capacity to make some decisions for themselves at some point in their lives because of injury, illness or disability. The Mental Capacity Act 2005 was designed to protect and empower individuals in these circumstances. But the CQC identified some serious concerns about the Act’s practical implementation. In 2014, a House of Lords select committee reported on the issue, adding momentum to the need for improvement.

What’s new?

After a request from the Department of Health, the National Institute for Health and Care Excellence (NICE) has developed a guideline on decision-making and mental capacity, which was published in October. It makes recommendations for best practice in assessing and supporting people aged 16 years and older with decision-making. It ensures people are supported to make decisions for themselves when they have mental capacity; and where mental capacity is lacking, makes sure they remain at the centre of the decision-making process.

The guideline aims to helps health and social care practitioners to implement the Act’s principles, which are explained further in the Code of Practice. It applies to a range of potential decisions, including care, support, treatment and day-to-day living. It focuses on four areas: advance care planning; supporting decision-making; assessment of mental capacity to make specific decisions at a particular time; and best interest decision-making for individuals who lack capacity.

The guideline supports the ethos and principles introduced in the Act and explained further in the Code of Practice, specifically:  

  • People must be assumed to have capacity, unless a lack is established.
  • They should not be treated as unable to make a decision unless all practicable steps to help them have been taken without success.
  • They should not be treated as unable to make a decision because they make an unwise one.
  • Acts and decisions made for and on behalf of someone who lacks capacity should be in their best interests.
  • Before acts or decisions are made, it should be considered if the purpose can be achieved in a way that is less restrictive of someone's rights or freedom.

Implications for nurses

Nurses in all settings, including care homes and acute hospital wards, need to be mindful of their responsibilities and legal duties under the Act to make assessments and decisions on mental capacity. This includes understanding the Code and how it might apply to their own clinical practice.

They also need to be aware of when issues should be reported to the Court of Protection, which makes decisions on financial or welfare matters for those who lack capacity at that time. Importantly, nurses should understand that they may find themselves subject to criminal proceedings if they fail to abide by the Mental Capacity Act.

In putting the guideline into practice, NICE highlights the need for a well-trained workforce, delivered with input from people who use services. Nurses can boost their knowledge using resources such as those provided by the Social Care Institute for Excellence.

For nurses who have concerns about a patient and need further advice, the Court of Protection helpline on 0300 456 4600 can provide information before an emergency application is made.

Expert comment

Lynne Phair, independent nurse consultant and expert witness

Lynne_Phair‘This guideline is a real missed opportunity and hasn’t helped to move the issues forward at all. I do a lot of work for the Court of Protection as an independent assessor, when there are disputes over decisions. My starting point is: does this guideline help the practitioner in understanding their roles and responsibilities? And my answer is, it doesn’t. 

‘Among my reasons is that it continues to place the Act outside the framework of consent to treatment – but the Act provides the legal framework and is the cornerstone of this consent, so the two should not be separated. Unfortunately, the guideline hasn’t interrogated practice issues and what we know are the problems.’ 


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