We make choices every day. How we live our lives, fulfil our desires and make plans for the future. We rarely consider ourselves fortunate to be able to do so. In fact, it is a gift we take very much for granted.
What is Mental Capacity?
Through illness or disability, many adults find difficulty with processing the information needed to make a particular decision. So their ability to make their own choices is affected.
This ability is what we mean by “Mental Capacity”.
Mental health problems, learning disability, dementia, stroke, brain injury and the natural aging process can all affect our decision-making skills.
When you think about it, this accounts for the majority of people living in care homes today.
Judging Mental Capacity
Capacity should not be assessed solely on a specific medical diagnosis. Nor should it be assumed from a decision or behaviour considered to be eccentric, unusual or even ill-advised.
In common law, we all, as adults, have a right to make our own decisions, “good or bad”.That is precisely how capacity was assessed in the not so distant past, however – an all other nothing phenomenon! A person either had full capacity to make decisions, or none at all. In the latter case, those individuals had few rights with limited legal recourse.
Thankfully, the picture today is a much brighter one with the introduction of various laws and acts designed to protect those vulnerable adults.(link – link).
These laws vary on both a global and regional level and are too numerous to incorporate here. However, we will refer to various aspects of UK law to provide some illustrations of how it can protect us.
But remember, some local research will be necessary to see how it applies in your own area before you proceed.
What is incapacity?
When our ability to make our own decisions is compromised, we are said to have incapacity. This concept is rarely a black and white issue.
Under UK law, an individual’s capacity is judged according to the specific decision to be made. So a person may have sufficient capacity to make simple decisions but not more complicated ones.
However, a person’s capacity can vary from day to day and even at different times of the day.
Consider your own decision making processes for example. When you are tired, hungry, stressed even simple choices can seem too much to cope with at the time, can’t it?
Well, it is exactly the same for our residents. But they have other illnesses or disabilities added on which makes it even more difficult for them.
Capacity can also vary with time. For example a person with an acquired brain injury may have little or no capacity immediately after the incident, but regain that capacity during the recovery process. Conversely, a person diagnosed with dementia may maintain their full capacity in the early stages of the disease, but find that their capacity decreases over time as the disease advances.
However, I am sure that many of us have experienced the scenario where a resident in the advanced stages of dementia has a moment of absolute clarity. They give a very clear and appropriate response which leaves us speechless and stunned! But we are left in no doubt about what they do or do not want at that particular moment.
It is simply the nature of the disease, which can be fluid and ever changing. Sadly, it is also the reason why the person living with dementia is often poorly understood and/or misjudged as “faking it”. But let’s leave that thought for another day.
Incapacity, then does not mean that a person is unable to make any decisions at all. They may for example lack the capacity to manage their money but retain the ability to make healthcare decisions.
Even when a person has been assessed with incapacity to make a specific decision, we should still involve them in the decision making process, and seek their opinion. In fact, we are duty bound to actively help them to express their views as far as possible.
Incapacity and the law
Let‘s take a brief look at how the law works in Scotland but please remember to check how it applies in your own area.
The Adults With Incapacity (Scotland) Act 2000 applies to all individuals aged 16 years or over. This law states that an adult lacks legal capacity to make a particular decision when there is evidence that he or she is unable to:
• understand information given to them to make a particular decision
• retain that information long enough to be able to make the decision
• use or weigh up the information to make the decision
• communicate their decision
The Act applies to all sorts of decision such as:
• major decisions such as decisions about personal finance, social care or medical treatment
• everyday decisions such as decisions about what to wear or eat
They cover a range of options to help people over the age of 16 and allow others to make decisions on their behalf. The laws are there to protect all adult individuals who are vulnerable through incapacity. The Acts can also be used by anyone who wants to plan ahead for a future time when they might no longer be able to make decisions for themselves (Link – Link).
Who can assess incapacity?
In reality, and surprising as it may seem, there are no universally standardised tests to measure capacity. Assessment very much depends on the specific circumstances of the individual and the decision being made.
Capacity can be assessed by a variety people such as carers, GPs, neuropsychologists and social workers, depending on the type of decision to be made. Carers and relatives may be able to gauge a person’s capacity to decide when they get up in the morning whereas a GP can judge their capacity relating to medical treatments and so on.
As we have seen, capacity is by no means a straightforward issue. It needs to be constantly reassessed because there may be recovery or deterioration. We need to continue to involve the resident as much as possible in decision making, with a focus on what will serve the resident’s best interest while restricting their freedom as little as possible.