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Capacity is decision-specific and time-specific. Assume capacity unless shown otherwise. A capacitous adult may refuse treatment even if the decision seems unwise. (England and Wales; Scotland and NI differ.)

Five principles

  • Presume capacity
  • Support the person to decide before concluding they cannot
  • An unwise decision does not mean a lack of capacity
  • Act in the person's best interests if they lack capacity
  • Choose the least restrictive option

Two-stage test

  • 1. Is there an impairment of, or disturbance in, the mind or brain?
  • 2. Does it mean the person cannot understand, retain, weigh, or communicate the decision?
  • Failing any one of the four functional elements means no capacity for that decision
  • Fluctuating capacity: assess at the relevant time

Has capacity

  • Understands, retains, weighs, communicates
  • Decision- and time-specific
  • Respect the decision

Lacks capacity

  • Fails one or more of the four
  • Act in best interests
  • Least restrictive, involve family

Deprivation of liberty

  • Continuous supervision and control
  • Not free to leave
  • DoLS or Court authorisation

Process

1
1. Assess for this decision
Assess capacity for the specific decision, now, and document the conversation and your reasoning.
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2
2. Maximise capacity
Use plain language, an interpreter or communication aids, the best time of day, and involve someone who knows the person.
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3
3. Best interests
If the person lacks capacity, decide in their best interests: consider past wishes, beliefs and values, consult family and carers, and check for an advance decision, LPA or IMCA.
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4
4. Restrictions and emergencies
Deprivation of liberty needs the correct legal authorisation. In an emergency, provide immediate life-saving treatment in the person's best interests.

Also consider

  • A valid and applicable advance decision to refuse treatment is binding
  • Lasting power of attorney (health and welfare) can consent or refuse
  • The Mental Health Act may apply for treatment of a mental disorder

Pitfalls

  • Judging capacity on the decision's wisdom
  • A blanket 'has or lacks capacity' label (it is decision-specific)
  • Not supporting the person to decide first
  • Restraining or depriving liberty without lawful authority

MedPrep - www.medprep.uk - Educational revision aid only. Not clinical guidance. Doses are adult examples; check the BNF, current guidelines and local policy, and seek senior advice. Nov 2026