Have a clearly defined idea of what the decision to be made is, or what question needs to be answered.
The patient should ideally be given the background to the assessment and the precise decision that needs to be made so that they have some context when answering questions.
Ensure that you identify what information is relevant to the decision and convey this to the patient. For many doctors, this is relatively straightforward when the decision relates to a decision about clinical treatment, as it will be similar to the consent process. It is however more complex when decisions relate to non-clinical matters such as making an LPA.
Paragraph 4.16 of the MCA Code of Practice offers some guidance on the point of what relevant information might be in this context, including the nature of the decision; the reason why the decision is needed; the likely effects of deciding one way or another; or making no decision at all.
The Code of Practice goes on to explain that in some cases it may be sufficient to give the patient a broad explanation in simple terms. However, in other cases the individual may need more detailed information, especially if the decision could have 'serious or grave consequences'.
Once the information has been given it can be helpful to check the patient's understanding by asking a series of questions.
Try to avoid closed questions to which the patient can simply answer yes or no. Open questioning such as 'What do you understand about making a Lasting Power of Attorney?' or 'What impact do you think making an LPA will have on you?' invites a dialogue, which can be far more informative about the patient's capacity.
Once the assessment is completed it is sensible to document what was discussed, including the information given to the patient, what questions were asked, what the patient's answers were, and what the outcome of the assessment was. You can then refer to this if you are asked to justify your findings at a later date.
If there is any doubt at all about the patient's capacity then seeking a second opinion is an option.

Practical considerations when assessing capacity

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Dr Ellie Mein

Practical considerations when assessing capacity