Clinical update

NICE issues guidance on decision-making and mental capacity

This guidance reflects concerns about the implementation of the Mental Capacity Act 2005

These guidelines reflect concerns about the implementation of the Mental Capacity Act 2005

Picture: iStock

Essential info

Around two million people in England and Wales are estimated to lack the capacity to make decisions for themselves at some point because of illness, injury or disability, according to the Care Quality Commission (CQC). 

The Mental Capacity Act 2005 was designed to empower and protect individuals in these circumstances. However, there have been serious concerns from the health watchdog and politicians about how the act is implemented by health staff.

What’s new

The National Institute for Health and Care Excellence (NICE) has developed guidance for health and social care practitioners facing decisions relating to patient care, support, treatment, financial matters and day-to-day living.

It was commissioned by the Department of Health and Social Care after concerns about the implementation of the act were raised by the CQC and a report from the Lords select committee.

Concerns centre around the protection of rights and informing people of their rights.

The new NICE guidance says staff need training on how to apply the essential principles of the act. 

These principles include assuming a person possesses capacity unless it is established otherwise and not treating someone as unable to take 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 are also 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, the document says. A record should be made of the decision-making process and shared with the patient.

All health practitioners who come into contact with a person after a diagnosis of a life-limiting condition should help them to make an informed choice about participating in advance care planning.

How you can help your patient

  • 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 an adviser on the NICE mental capacity guideline committee

‘This guidance will aid all healthcare staff involved in helping people who have capacity to make decisions, as well as keeping people who may lack capacity at the centre of the decision-making process. 

‘It gives practical advice on supporting decision-making, advance care planning, best interests decision-making and the assessment of mental capacity. 

‘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 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.’


Further information

Related articles

This article is for subscribers only