How to Determine if a Person Lacks Capacity to Make Decisions

Introduction

The Mental Capacity Act 2005 (the Act) came into force in 2007. This is an example of a statute, also known as an Act of Parliament. In English law there are several principal sources of law. Amongst the most important, are statute law - law made by Parliament - and case law - law made in the courts. Case law is often referred to as common law.

What sometimes happens with the common law is that a body of law develops overtime in a piecemeal fashion. The courts only deal with the issues in the cases that come before them. To simplify things, Parliament will pass an Act that brings together all the law on a particular subject. This is what the Mental Capacity Act 2005 does with regard to determining a persons capacity to make decisions. The Act deals with a few other aspects of mental capacity, but this article is only concerned with the capacity to make decisions, primarily in a home care setting.

The Act, then, is very much, a restatement of the position that prevailed at common law. This position is explained very clearly by an American Judge, Cardozo J, in Schloendorff v New York Hospital in 1914. Although this is an American case, the law in England is identical. The Judge said:

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages.”

He continued

“This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.”

The word capacity refers to our ability to make a decision. If we consent to something - medical care for example - we are agreeing to have a certain procedure carried out. Our capacity to consent is relevant to a whole range of everyday activities, but it is in the area of health care where it is particularly important. The reason for its importance in this area is because any uninvited contact is, potentially, an assault. To take this to its extreme, even gently touching another person who has not consented to that contact is an assault.

The Mental Capacity Act 2005

If you are working in domiciliary care and are providing customers with support with personal care or medication, you will gain the consent of your customers before carrying out any of those activities. Consent will often be implicit; for example; where a customer who you are supporting with washing walks to the bathroom. 

There are five important points to bear in mind here: 

1. You can encourage and persuade your customers to have your support but you can never force them to have it.
2. A person who has the capacity to consent to your support, also has the capacity to refuse it.
3. Capacity is not an all or nothing state. It is best viewed as existing on a spectrum where at one extreme full capacity exists and at the other capacity is absent. In between these extremes, a person's capacity may fluctuate.
4. Capacity is time specific and decision specific. You may be able to make a decision today, but not tomorrow. You may be able to make a decision today, but struggle tomorrow. You may be able to make a decision about having your blood pressure checked but not about invasive surgery.
5. Capacity, therefore, is assessed each time before support is provided.

Assessing Capacity

This is how the Act guides you on assessing capacity. The starting point is a presumption in favour of capacity. Section 1 states that:

 “A person must be assumed to have capacity unless it is established that he lacks capacity”.

 This is very important. It recognises that we are independent and have the autonomy to make decisions for ourselves.

The question then is: how do you tell if a person lacks capacity? The Act, again, is your guide. There is a two stage test. The first stage is sometimes referred to as the diagnostic test. It says:

"...a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain." 

“It does not matter whether the impairment or disturbance is permanent or temporary.”

The impairment or disturbance can be permanent - for example where a person has dementia - or temporary - for example where a person has a urinary tract infection.

If you answer yes to this first test, you move on to the second, which is sometimes called the functional test. The reason for this name is because you are assessing how a person uses (functions) information to make a decision. The Act says that a person will not have the capacity to make a decision where he cannot:

"1. understand relevant information, or2. retain the information, or3. use the information in making a decision, or4. communicate a decision - by any means". 

If the person concerned cannot do any one of those four things he will lack the capacity to make a decision.

It is very important to understand that a person may be struggling to make a decision rather than lack capacity totally to decide. In such a case, the Act says:

"A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.”

“A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”

What this means is that if a person is struggling to make a decision, you should offer any help possible to help him reach a decision. Remember, you can encourage and persuade but never force someone to have your help. If the person you are supporting makes a decision even if it appears "unwise", that is a decision and it is not for you to question it.

There will be occasions where the person you are supporting does not have the capacity to make a decision. It may be that he is struggling and simply cannot decide, or quite clearly lacks the capacity to decide - for example a terminally ill person may become unconscious. The Act guides you again:

“An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

“Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.”

What this means is that where you have to make a decision for someone who lacks capacity, you must make a decision that is in that persons best interests. Sometimes you might be able to achieve a good outcome by doing something in a different way. Let's say that you are supporting someone to shower in the morning. He is struggling to make a decision about showering on this particular occasion. So you decide to bring a bowl of water, soap, flannels and towel to him and help him wash his hands and face. What you have done there is "...achieved [an outcome] in a way that is less restrictive of the person's rights and freedom of action.”

It may be the case that the person you are supporting has granted a power of attorney to someone for his or her health and welfare. In such a case, the person who is the power of attorney will make decisions on behalf of the person who loses capacity to decide. You may also support people who have made advanced directives about what should happen should they lose the capacity to make decisions. A commonly encountered advanced directive is what is sometimes referred to as a DNR - Do Not Resuscitate directive. 

Conclusion

If you make decisions in a person's best interests you may never know whether they are the right decisions. All you have to do is ensure that you always act in good faith in deciding that a person lacks capacity and in deciding in that person's best interests.

Garry Costain is the Managing Director of Caremark Thanet, a domiciliary care provider with offices in Margate, Kent. Caremark Thanet provides home care services throughout the Isle of Thanet. Garry can be contacted on 01843 235910 or email garry.costain@caremark.co.uk. You can also visit Caremark Thanet's website at www.caremark.co.uk/thanet.