Understand, retain, weigh and communicate
Expansion
The functional test: a person lacks capacity if, because of an impairment of the mind or brain, they cannot do any one of the following:
- Understand the information relevant to the decision
- Retain it long enough to make the decision
- Weigh or use it as part of the decision
- Communicate the decision, by any means
The five statutory principles
- Presume capacity unless established otherwise
- Take all practicable steps to help the person decide before concluding they cannot: interpreters, hearing aids, plain language, written or visual aids, choosing the right time of day
- An unwise decision does not indicate a lack of capacity
- Acts for someone lacking capacity must be in their best interests
- Choose the least restrictive option
Best interests is not what the clinician would choose. It requires consideration of the person’s past and present wishes, beliefs and values, the views of family, carers and attorneys, whether capacity might be regained so the decision can wait, and the person’s own participation as far as possible.
Note that a valid advance decision to refuse treatment binds, and that a lasting power of attorney for health and welfare may extend to life-sustaining treatment only if expressly stated.
Documentation must record the decision in question, the impairment, and which of the four elements failed and why.