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I am constantly assessing capacity. It isn’t always done on the formal paperwork that we use when a major decision or one likely to have major consequences is being made.
Sometimes it is a simple action that might be almost subconscious. Does the person who is drunk on the night bus know which stop he wants to get off at? Sure, he’ll have capacity tomorrow but by that time he might be in Hertfordshire.
I wouldn’t say it is something that only happens at work. Incapacity happens to all of us at times. It might not be drunkenness but rather sleepiness.
Capacity and incapacity doesn’t just happen to older people with memory problems.
However, the Mental Capacity Act 2005 is very clear that attempts should be made to wait until a person has regained capacity – if it is a temporary state – when a decision is necessary.
And each decision and assessment of capacity is taken independently. Someone can have the capacity to make one kind of decision about a preference of daytime activity or preference about living arrangement but lack capacity over another matter – like managing finances. It is not wholly uncommon for me to do a couple of capacity assessments simultaneously and have different results for each.
I want to look back at a capacity assessments I’ve done in the past. I’ve changed or amalgamated details to anonymise the scenarios and obviously the names are invented!
Mrs Smith has Alzheimer’s Type dementia. She gets very confused by details and has a deteriorating short term memory. She lives alone. I was asked to assess and make a decision about her capacity to manage her finances due to some concerns that she had been giving money to a ‘friend’ who wasn’t really a friend and was now hassling her for more money.
It seemed initially quite straightforward.
The Capacity Act specifies 5 principles and on that basis I undertook the assessment.
The first is to assume capacity unless proves otherwise. This is sometimes quite a hard one with some background information in your hand. It is more difficult to assume this position than it might seem.
All practicable steps must be taken to help that person to make a decision
A person is not unable to make a decision because their decision is unwise or we wouldn’t agree with it
Any decision taken on behalf of someone who lacks capacity must be done in their best interests
and – it must be the least restrictive option.
With those principles in the back of ones head – there are 2 other things to consider when actually assessing whether someone has capacity to make a particular decision according to the Mental Capacity Act 2005.
Firstly – there has to be some kind of ‘impairment or disturbance of the mind or brain’. This can be permanent or temporary and is incredibly broad. but then, this disturbance or impairment has to be sufficient to prevent them from making a decision at that time. If you can wait for a decision, you must.
These kinds of assessments would take place thousands of times in hospitals up and down the country as people are admitted who lack consciousness and decisions have to be made before there is a chance to ask about treatment choices.
In the case of Mrs Smith, I am visiting her at a time of her choice – late morning – we are in her home and she is familiar with me. Her dementia would be the impairment or disturbance of the mind or brain and while she has good days and bad days, the lack of significant variance in her cognitive functioning is sufficient for me to be assured that a time delay would not lead to her condition improving.
Having passed those hurdles there are four parts to the actual capacity assessment.
Namely that Mrs Smith
1. Understands the information relevant to the decision
So I ask her in general about her finances – how she gets her money, how much money she gets, what would she do if her money wasn’t available one week or didn’t turn up?
How much does she spend on her weekly shop? How much is a loaf of bread?
These might sound minor but it builds a picture for me of her understanding of finances and proportions of money. If she thinks a loaf of bread costs £50, giving £50 to her friend is going to have different implications to her.
These are also fairly straightforward questions to build into a conversation. It doesn’t have to be a form-filling frenzy and ideally should be in the form of a relaxed conversation.
I also need to be clear that Mrs Smith understands the implications of her actions.
So I might ask about savings and what she would do if she were £50 short one week – would she still have enough for the essentials?
2. Can the person retain the information given
I might ask back some of the questions I’ve asked previously or just add a gentle reminder or two about what I’ve already said.
Where was I? Ah yes, thanks for that, Mrs Smith, I was asking you about your pension, wasn’t I?
3. Weighing up the information as a part of the decision-making process
So Mrs Smith, you know when you are £50 short for the pension because you’ve given it to Mr Brown.. what is the result of that?
Sometimes someone might have a particular ‘block’ about the consequences of a particular actin – so Mrs Smith might say, I know that I am short but there’s always more money where that came from. I never run out of money on my £95 a week pension and lack of savings.
OK, not the best example but she might be able t retell me the outcomes but not relate them to her situation directly or use the information given (she is £50 short) and find the relevance in her own life.
But that’s isn’t what she said.
She said that she had always given money to Mr Brown. Yes, it left her short of cash as it always had, did and would but she would struggle by. She just bought less.
4. The last part is that the assessee has to be able to communicate the information back.
Every effort has to be made to facilitate this for people who might have some kind of sensory impairment. Any kind of communication ‘counts’ – it doesn’t have to be verbal at all.
Mrs Smith was able to talk profusely so communication wasn’t a problem for her.
In the end, I decided that she did have capacity to make decision regarding her finances and fell into what I, personally, would consider the ‘unwise’ decisions area. She had, I learnt, given money to people who asked her for help, for many years. This was not new behaviour when she developed Alzheimer’s. She was more vulnerable now but that is for the safeguarding procedures to manage.
Just because she acts in a risky way doesn’t mean that she lacks capacity.
Just because she need to take actions to protect her, doesn’t mean that she lacks capacity.
It is just a simple example. I hope it’s useful to someone ‘out there’ in understanding the process.
We have lots of forms to complete, of course, but I try to jot down a few questions in advance that might take me through the first stages of ensuring someone understands the decision and has weighed up the information given. Each decision though is unique.
I would involve family and friends as far as possible because it builds a picture of who that person is and was and what they would want if a decision has to be made on their behalf.
Sometimes it is too easy to assume that someone lacks capacity from looking at their history and documentation.
Sometimes the harder decisions are to be made when capacity exists.
Lack of capacity does not just mean ‘we can make a decision for you’ – the decision has to be right for that individual. Not right for the professional. Not right for their family. Not what minimises risk.
But what would that person choose to do if they were able to.
It can be more of a quandary than first appears and is never a decision to take lightly.
- The Decision Maker (fightingmonsters.wordpress.com)