Learning objectives

By the end of unit 3, you will:

  • Understand mental capacity legislation and its application.
  • Recognise the key components of an advance care planning conversation.

Mental capacity

Mental capacity legislation provides a legal framework for supporting people aged sixteen and over to make decisions about their care and treatment, and aged 18 and over for advance care planning decisions.

It is important to note that mental capacity can fluctuate with time. An individual may have a temporary lack of capacity because of a sudden accident, loss of consciousness or excessive alcohol. They may have a permanent lack of capacity following a brain injury or stroke.

All health care professionals have a duty to understand and know how to apply the Mental Capacity Act. Legislation and the core values on which mental capacity is based should be considered in preparation for advance care planning.

The core values on which mental capacity is based are as follows:

  • always assume an individual has capacity to make a decision, unless it is established following the appropriate assessment that they lack capacity.
  • an individual should be supported to make their own decisions, where possible.
  • a person should not be treated as unable to make a decision because you think it is an unwise decision.
  • if a person is assessed as being unable to make decisions, the decision maker should consider what is in the best interests of the person.
  • when making a best interests decision, the choice that interferes least with a person’s rights and freedoms should be chosen.

Source: adapted from Marie Curie.

Important Points

Ideally, advance care planning takes place when an individual has the mental capacity to engage in the discussion and decisions made about their future care, ensuring their preferences of care and wishes for the future are known.

All decisions regarding an individual’s mental capacity should be made on an individual basis, with supporting evidence.

It is important that people are supported to make decisions about their care and treatment, and that the rights of people with cognitive impairments are protected.

Want to learn more? Links to further information that can help you assess mental capacity are included in the resource section of this website.

Below is a video from Karen Bowes, Royal College of Nursing, Community Palliative Care team providing an overview of the key components of an advance care planning discussion.

Statement of wishes and preferences for future care

A statement of wishes and preferences for care is a record of what is important to an individual and how best to meet their care needs on a day-to-day basis. It considers what matters to the person, considering their feelings, beliefs, and values. This aspect of advance care planning is not legally binding but will contain vital information about the individual.

A statement of wishes and preferences for care and treatment should consider the following:

  • Psychological support, for example wellbeing support particularly with worries or distress.
  • Social support, for example ensuring appropriate support and contact with family, friends, and individuals important to them.
  • Spiritual support, for example ensuring relevant faith or religious needs are met.

Emergency care planning

Emergency care planning forms part of the advance care plan. It supports the decision-making of health and social care providers by providing clinical recommendations on the care that an individual would or would not like to receive in an emergency situation.

However, it is important to manage expectations during emergency care planning discussions. For example, where there are medical indications that an intervention is no longer clinically appropriate, health care providers may need to take different actions to the wishes that have been expressed.

Where relevant, the emergency care plan should consider the following:

Cardiopulmonary Resuscitation (CPR) and Do not Attempt Cardiopulmonary Resuscitation (DNACPR):
for example, shared understanding of whether CPR might be successful and, if it might, whether attempting CPR would be wanted.

Advance Decision to Refuse Treatment (ADRT):
for example, treatments not wanted and in what circumstances
Want to learn more?
ADRT principles are explored further here by NHS England

Co-morbidity management:
for example, decisions about managing other long-term conditions.

 

Anticipatory medication:
for example, pain medication.

Preferred place of care:
for example, at home or hospital.

 

* It is important to remember that DNACPR is not legally binding itself – it is a tool to inform doctors. If an individual or family member wishes a DNACPR to be legally binding, this should be included in an Advance Decision to Refuse Treatment document (England, Wales, and Northern Ireland) or an Advanced Directive (Scotland).

Key Point

There are a number of templates that can be used to support emergency care planning. One such approach is the Recommended Summary Plan for Emergency Care and Treatment (ReSPECT). This ReSPECT form creates a personalised recommendation or plan for an individual’s clinical care in an emergency where they may be unable to discuss their wishes or make decisions regarding preferred treatment. More information on ReSPECT and the form is included in the resource section.

Best interests decision making

Best interests decision making is when a choice about care is made on behalf of an individual who is not able to decide for themselves because they are assessed as lacking mental capacity.

This decision must be taken with the individual’s best interests in mind and be informed by what the individual would want.

Best interests decisions must be made based on the decision that the individual would have made if they had capacity and not based on their age, appearance, or condition.

An advance care plan would be used to support any decisions made.

Five principles of best interests decision making, when an individual lacks capacity:

  1. Encourage the individual to participate in decision making as far as possible (consider alternative means of communicating if appropriate)
  2. Consider whether it is likely that the individual will regain capacity and if so, when this is likely to happen, so that you can consider delaying the decision
  3. Consider past and present wishes, beliefs, and values, including any written statements when the individual had capacity
  4. Ascertain the wishes of the individual by speaking with appropriate individuals, for example an individual nominated through power of attorney or family / carers
  5. Consider any alternative actions that would have the same effect but less impact on the individual’s rights.

It is important to inform those that are important to the individual that there are legal frameworks in place to protect the individual’s rights and best interests, and how those are being followed.

More information on these frameworks and advance care planning policy documents specific to the four UK Nations are available in the resource section.