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.

The Mental Capacity Act 2005 and the Pre-eminence of Autonomy

Introduction

"L’homme est condamné à être libre"

"Man is condemned to be free"

Jean-Paul Sartre

This article is written as a paean to human autonomy. Life is about making choices. Sometimes we choose correctly; sometimes we choose wrongly; sometimes our choices are motivated by self-interest; sometimes by altruism; sometimes these motivations coincide. The point is we cannot live our lives without making choices.

For some, this radical freedom is uncomfortable. The price of this freedom is very high. We cannot choose not to make choices, because not choosing is a choice. We are condemned to be free. If we have no choice but to choose, it follows that we must be responsible for the consequences of the choices we make. And this is the concept of human autonomy. Our criminal law is predicated on human autonomy. Should we choose to break the law; we must be prepared to accept the consequences of our actions.

The corollary of having to accept the consequences of our actions is that we should not be compelled to take actions that we do not wish to take – or indeed to have actions forced upon us.  It is in the realm of medical care that autonomy plays a significant role. The position was explained succinctly by Cardozo J in the American case of Schloendorff v New York Hospital in 1914.

“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.”

The Judge 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.”

There are, however, limits on autonomy. My autonomy to act cannot illegitimately interfere with your autonomy to act. And that is why we have laws. Is my autonomy to refuse medical treatment completely unfettered? This question was brought into sharp relief in the case of Re MB 1997. MB was 40 weeks’ pregnant and required a caesarean section. She refused because of a needle phobia. The Court of Appeal decided that the operation could be carried out because MB was not competent to decide. However, had she been so competent, Butler-Sloss LJ explained:

“A competent woman who has the capacity to decide may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears, or her own death. In that event the courts do not have the jurisdiction to declare medical intervention lawful and the question of her own best interests objectively considered, does not arise.”

Where, then, lie the limits of autonomy?

The Limits of Autonomy

"The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."

John Stuart Mill

You are the author of your life story and no editor’s pen should make any corrections to your text. There should be no unofficial biographies of your life. Only those invited to help tell your story are allowed. What goes for you; goes for others. Put simply, how you choose to live your life is entirely up to you – well almost. So long as your choices cause no harm to anyone else; you should be free to do as you please.

I may not agree with how you live your life. Your choices may be morally repugnant to me, but they are your choices as to how you live your life. Your beliefs and opinions may be offensive to me and others, but you choose how to live your life. So long as you cause no harm to me or others, you choose the life you want to live. The challenging question is what constitutes harm to others, but I shall not pursue that here.

Human autonomy has a fine pedigree. John Stuart Mill was one of its most eloquent proponents. Each human being is unique; uniformity is bad. Human flourishing is to be encouraged; we must shape our lives not have them shaped for us. Ronald Dworkin, in his work Life’s Dominion: an Argument about Abortion, Euthanasia and Individual Freedom puts things quite graphically: We should “…allow someone to choose death over radical amputation or a blood transfusion, if that is his [sic] informed wish, because we acknowledge his right to a life structured by his own values.”

It would be remiss to speak of autonomy without making some reference to its opposite: paternalism – the view that, in a medical context, medical expertise knows best. I have to acknowledge that paternalism has its supporters: I am not one. I should endorse the view of Joel Feinberg who said that those who have been subjected to paternalistic interference feel “…violated, invaded, belittled”.

The Mental Capacity Act 2005

The Mental Capacity Act 2005 (the Act) came into force in 2007. There is very little that is new in the Act; it is, very much, a restatement of the position that prevailed at common law. Take a look at the statement from Cardozo J above. Although this statement was made in an American case, there is no difference between the position as stated by Cardozo J and the position in England. The foundation stone of the Act is that of human autonomy, a concept that has always sat at the high table of English legal principles. 

The Act is underpinned by five principles stated in section 1. The most important of these principles is a presumption in favour of capacity. Section 1 (2) states that “A person must be assumed to have capacity unless it is established that he lacks capacity”. This a statutory recognition of the central position that human autonomy holds in English law, and when it comes to medical treatment – for it is in this sphere that the presumption will, perhaps, have its most important application – it is a confirmation in the words of John Stuart Mill that “over his [sic] own body and mind, the individual is sovereign.”

Capacity must not be seen as an all or nothing concept. Indeed, the second and third principles of section 1 of the Act make it clear that capacity exists on a spectrum.

“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.”

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.

Just because someone makes a decision that we would not; that is not evidence of a lack of capacity. It may not be a decision that we like; it may not be one we would make; it may be a decision we would not encourage: but a decision it is. Once more, to quote John Stuart Mill: “…there may be good reasons for remonstrating …or reasoning…or persuading, or entreating, but not for compelling…”

Where, however, it is determined that capacity is wanting the final two principles of section 1 apply:

“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.”

Where a person lacks capacity, a decision will be made in that person’s best interest that achieves the desired outcome. Where there are several ways of achieving the outcome, one that is less restrictive of the person’s freedom should be taken. How, though, is a lack of capacity determined?

There are two tests to determine a lack of capacity. The first is a diagnostic test contained in section 2 of the Act:

“For the purposes of this Act, 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 fact that the impairment or disturbance must stem from the functioning of the mind or brain does raise a few questions of some interest; however, I shall not pursue these here.

If the person (or persons) assessing capacity is satisfied that there is an impairment or disturbance causing capacity to be wanting, the second test is then applied. The second test is a functional test contained in section 3 of the Act:

“1)…a person is unable to make a decision for himself if he is unable—

(a)to understand the information relevant to the decision,

(b)to retain that information,

(c)to use or weigh that information as part of the process of making the decision, or

(d)to communicate his decision (whether by talking, using sign language or any other means).”

At common law, it was the case that there had to be compelling evidence that someone lacked capacity. Things should not be different under the Act. It is likely that where things are in the balance, a decision will be made in favour of capacity

In Conclusion

There is something else about autonomy that is important; so important that that is deserves an article all to itself. I will merely conclude this article with a mention the horrendous crimes that have been carried out on innocent human beings in the name of treatment.

No-one is sure who first uttered the aphorism about freedom’s price being eternal vigilance. It might have been Voltaire; it might have been Thomas Jefferson or Tom Paine; it might have been John Philpot Curran. It matters very little who it was: it matters that the aphorism is true. There are few threats to human freedom greater than an overbearing state with a medical profession in its thrall.

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.