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Mental capacity under the Mental Capacity Act 2005.
Mental capacity refers to a person’s ability to make specific decisions for themselves at the time they need to be made. The Act applies to individuals aged 16 and over in England and Wales.
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Key aspects of the MCA include:
1. Presumption of capacity: every adult is assumed to have capacity unless proven otherwise.
2. Two-stage test for assessing capacity:
a. Does the person have an impairment of, or disturbance in the functioning of, their mind or brain?
b. Is the impairment or disturbance sufficient that the person is unable to make a particular decision?
3. Decision-specific: a person may have capacity to make some decisions but not others.
4. Time-specific: capacity can fluctuate over time.
5. Inability to make decisions: a person is considered unable to make a decision if they cannot:
– Understand information relevant to the decision
– Retain that information.
– Use or weigh that information as part of the decision-making process
– Communicate their decision.
6. Support requirement: all practicable steps must be taken to help a person make their own decisions before they are deemed to lack capacity.
7. Unwise decisions: Making an unwise decision does not necessarily indicate a lack of capacity.
The Mental Capacity Act aims to protect and empower individuals who may lack capacity to make their own decisions about their care and treatment.
The MCA does not provide a single definition of “best interests”. Instead, it establishes a checklist of factors that decision-makers must consider when determining what is in a person’s best interests.
Key aspects of the best interests principle of the Mental Capacity Act include:
1. Non-discrimination: Decisions must not be based solely on a person’s age, appearance, condition, or behaviour.
2. Consideration of all relevant circumstances.
3. Encouraging participation: The person should be involved as much as possible in the decision-making process.
4. Future capacity: Consider whether the person might regain capacity and if the decision can be delayed.
5. Past and present wishes: consider the person’s current and previous wishes, feelings, beliefs, and values.
6. Consultation: consult with others involved in the person’s care or interested in their welfare.
7. Life-sustaining treatment: when considering life-sustaining treatment, decisions must not be motivated by a desire to bring about death.
The MCA requires decision-makers to use a “balance sheet” approach, weighing the likely advantages against the disadvantages of a decision. This approach ensures that decisions are made in the person’s best interests, considering their individual circumstances and focusing on what is right for that person rather than what others might want or what a “reasonable person” would choose.
Best Interests Checklist
includes several key factors that must be considered when making decisions for someone who lacks capacity:
1. Avoid discrimination: Do not make assumptions based solely on age, appearance, condition, or behaviour.
2. Consider all relevant circumstances related to the decision.
3. Assess future capacity: determine if the person might regain capacity and whether the decision can be delayed.
4. Encourage participation: involve the person as much as possible in the decision-making process.
5. Identify past and present wishes, feelings, beliefs, and values: consider religious, cultural, moral, or political factors influencing the decision.
6. Consult others: seek input from family, friends, and caregivers about the person’s wishes and values.
7. Life-sustaining treatment: for decisions involving life-sustaining treatment, avoid being motivated by a desire to bring about death.
8. Least restrictive option: consider if there are less restrictive alternatives available.
9. Weigh risks and benefits: evaluate the advantages and disadvantages of available options.
10. Consider the cultural background and past behaviours or habits that may influence the decision.
11. Examine financial circumstances and future goals, if relevant to the decision.
By considering these factors, decision-makers can ensure a comprehensive assessment of the person’s best interests, tailored to their individual circumstances and values.
What happens if Mental Capacity has been lost, perhaps due to delay?
Might They Regain Mental Capacity?
Consider the following approaches:
1. Time-specific assessment: evaluate capacity at different times of day, as it may fluctuate. This helps identify periods when the person’s understanding is better. I had a client whose capacity appeared borderline, but a second visit letter in the day revealed a person with absolutely undoubted mental capacity.
2. Context consideration: assess capacity in various environments, including comfortable settings with loved ones present. A lawyers office makes most people nervous – my office is a lounge in my home, and I can visit people at home in the local area.
3. Medication effects: consider how medication may affect capacity throughout the day. Maybe there has been a recent change in medication which is unsettling things?
4. Regular re-assessment: conduct repeated assessments to get a better sense of any mismatch between words and actions.
5. Collateral information: seek input from clinicians who have conducted functional assessments and family members. Sadly GPs are often unwilling to get involved, but a sympathetic social worker might. Sadly, getting professional assessments in borderline cases costs more than the Lasting Powers of Attorney. That said, I would only suggest it if mental capacity was in my mind doubtful, so consider obtaining opinions from specialists such as clinical psychologists, psycho-geriatricians, or nurse consultants.
6. Longitudinal approach: use a more holistic assessment over time to detect subtle effects of impairment on decision-making.
7. Document evidence: record any repeated mismatches between the person’s words and actions.
8. Consider transient factors: evaluate whether confusion, drowsiness, or unconsciousness due to illness or treatment may be temporary.
9. Explore potential for improvement: assess if additional support or practicable steps could help the person improve their decision-making capacity. There are many methods of helping people to understand the impact of decisions more easily but I haven’t found a really good source – let me know if you know of one please.
10. Avoid assumptions: Remember that unwise decisions don’t necessarily indicate lack of capacity.
By following these steps, you can strive for a comprehensive assessment of a person’s decision-making capacity, focusing on their specific circumstances and abilities.
By using these methods, you can strive for an unbiased assessment of whether a person might regain capacity, focusing on objective evidence and multiple perspectives rather than relying on a single assessment or personal assumptions.
Differentiating between unwise decisions and those affected by executive impairment
requires careful assessment and consideration of several factors:
1. Logical thought process: an unwise decision typically involves a logical, consistent series of steps from evidence to outcome, even if others disagree with the conclusion.
2. Risk awareness: individuals making unwise decisions can usually weigh the risks involved, including potential consequences.
3. Consistency between words and actions: impairment often results in a mismatch between what a person says they will do and their actual behaviour.
4. Pattern of behaviour: look for evidence of repeated risky decisions over time, which may indicate executive functioning issues.
5. Ability to implement decisions: those with executive impairment may articulate coherent answers but struggle to put their intentions into effect.
6. Overestimation of abilities: people with executive functioning difficulties may overestimate their skills and underestimate their need for support.
7. Past behaviour analysis: consider whether past actions demonstrate an inability to follow through on stated intentions.
8. Impulsivity: some individuals with serious brain damage might make impulsive decisions regardless of information provided or their understanding of it.
9. Causative nexus: for a decision to be considered affected by impairment, there must be a direct link between the impairment and the inability to understand, retain, use, weigh, or communicate the decision.
10. Degree of “unwisdom”: consider the extent of the unwisdom and its likely consequences, as unwise decisions exist on a spectrum rather than being a binary choice.
It’s important to note that difficulty with executive functioning alone is not evidence of a lack of capacity. Practitioners should always consider whether additional support can be provided to enable decision-making and avoid assuming lack of capacity based solely on the decision itself.
The Mental Capacity Act 2005 is the main source.
