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Making decisions – What is the definition of capacity?
The Mental Capacity Act 2005 was introduced to put into statute law matters that had previously been dealt with under the common law. That is, how to handle the difficult issue of making decisions for people who are mentally unable to make those decisions themselves. To put it technically, the Mental Capacity Act (MCA) is about people who lack capacity to make certain decisions, so it’s important to examine this term ‘capacity’. First, and this a very important component of the Mental Capacity Act, capacity is decision specific, so beware of somebody telling you that a service user lacks capacity. If someone tells you this, ask them exactly what it is that the person lacks the capacity to do. For example, someone may not have the capacity to handle a complex decision about selling their home, but they may well have the capacity to decide what they want to eat for their breakfast! One of the fundamental principles of the Mental Capacity Act is that we should not assume people lack capacity merely because they have a learning disability , or an illness like dementia – people with those disorders are making decisions every day, perhaps sometimes with assistance from care staff.
Let’s try and examine what the term ‘capacity’ means in more detail. The MCA has a two part test, contained in sections 2 and 3 of the Act. The first part is to consider whether the person has an impairment or disturbance in the functioning of the mind or brain. This could be as a result of a long-term impairment, such as a learning disability, or an illness like dementia or the person may have a short term or temporary impairment, perhaps as a result of a stroke, or even being drunk. All of these could result in a loss of functioning in the mind or brain. The second part of the two-part test is to consider whether this impairment means the person is unable to make a decision. One suggested way of assessing this is to use the ‘CURE’ test, which I came across on the excellent Mental Health Cop blog website which can be found at: http://mentalhealthcop.wordpress.com/2012/05/09/the-cure-test/.
I’m going to use a case example to illustrate how the test might be used. Imagine you are a member of staff in a care home . There is a young male resident called John who has a learning disability. He says he wants to go out to the pub one lunchtime. You are concerned about this, because the last time he went to the pub he got verbally abused by some other young men in the pub when he asked a member of the bar staff if she would go out with him, and he returned to the home in a very distressed state. So let’s go through the CURE test.
- Can he Communicate his decision? Can he tell you clearly what he wants to do?
- Can he Understand the decision to be made? Does he understand the implications of his decision? Yes he wants to enjoy a beer at the pub, but is he aware of what might happen, thinking about what happened last time?
- Can he Retain information? When you talk through with him what the consequences of going to the pub might be, could he repeat those back to you a few minutes later?
- Can he Evaluate the possible consequences of the decision to be made? (Mental Health Cop talks about Employing the information, but I prefer Evaluate!) Can he see the disadvantages of going to the pub, as well as the advantages? Can he weigh them up and come to a balanced judgement? The point here is not whether you think it’s a bad idea or not, it’s whether John can consider both sides of the argument – for and against going to the pub. We all do silly things from time to time; it does not necessarily mean we lack capacity!
Now, a couple of more things on this test. Unless the person can do all of those, that is; communicate, understand, retain and evaluate, then we can say they lack capacity to make that particular decision, i.e. to go to the pub or not. In addition, the person’s failure to pass the CURE test must be as a consequence of their impairment of mind or brain. There is a recent judgement in the Court of Appeal (PC v York City Council 2013) which stressed the connection between the mental impairment and the inability to make a decision. This case concerned a young woman with learning disabilities who wished to cohabit with a man with a history of serious sex offences. The appeal court said there was not sufficient evidence to show it was the woman’s mental impairment that made her unable to make a decision.
So, back to the CURE test. Does John pass it? Sometimes staff in care settings feel that issues of mental health and mental capacity are very technical matters best left to the experts. Two points here, many decisions to be made are very quick day-to-day matters. We can’t realistically ask for an opinion from a mental health professional every time John says he wants to go the pub, and anyway, the MCA Code of Practice says we are all experts, or at least we are all decision-makers under the Mental Capacity Act. The decision-maker in this case is the member of staff on duty. They have to make the judgement. There are a number of things that can help the member of staff with this. Hopefully they know John; they have seen him in other situations, making other decisions. They should not be making assumptions; the fact that John has a learning disability is not sufficient reason to say he lacks capacity. It may be that the member of staff concludes that John lacks the capacity to make the decision, in which case they may be making the decision for him. The outcome need not be that John does not go the pub; it might be that a member of staff goes with him.
However, before we start making decisions on John’s behalf, the first issue is to assess whether John has the capacity to make the decision himself, and record that decision! Making an assessment and judgement based on our experience and knowledge of the person, recording it, and being able to justify it are essential keys to good practice. For some useful information for care staff on how to assess capacity there is a useful guide called Making Decisions, produced by the Office of the Public Guardian which can be found at: http://www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/opg-603-0409.pdf