Mental Capacity Casebook

Clinical Assessment and Legal Commentary

Tracey Ryan-Morgan

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9781000006889
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

The Mental Capacity Act 2005 (MCA) provides a legal framework for acting on behalf of individuals who lack the capacity to make decisions for themselves. The Mental Capacity Casebook showcases numerous real-life case studies in accordance to this Act. Through the exploration of various mental capacity assessments, this book highlights the psychological needs of the individuals who are supported and protected by the MCA.

Dr. Tracey Ryan-Morgan, a Consultant Clinical Neuropsychologist, is the first to bridge the gap between the individual's psychological requirements and the legal framework surrounding them. Not only does this book present true, often complex, mental capacity assessments, it does so with legitimate corresponding commentaries. Each case outlines the presented problem along with its background, social context, psychological matters, the overriding opinion and concluding learning points.

This book provides a unique standpoint, offering insight into the complexities of the Act and practical guidance on how to conduct assessments. It serves as essential reading for those looking for guidance whilst making complex capacity decisions, such as Clinical Neuropsychologists, Social Workers, and Legal Professionals.

Part I

Introduction

1 Introduction to the Mental Capacity Act (2005)

Dr Tracey Ryan-Morgan

The purpose of this chapter is to set the scene for the book, to describe the key components of the Mental Capacity Act c. 9 (2005) (MCA) and to explain its relevance to clinical considerations of decision-making.

The MCA (2005) is predicated on the basis that an adult retains capacity to make decisions about money, health, welfare and relationships without interference from others, unless there is robust evidence of an underlying brain injury or impairment to suggest that his/her decision-making abilities are impaired. The presumption is of a presence, rather than an absence, of capacity. In England and Wales, the burden of proving an absence of capacity lies upon the person who raises those concerns and the standard of proof is the Civil Standard on the balance of probabilities.

Comparable legislation

In Scotland, the framework for safeguarding the welfare and/or managing the finances of adults who are deemed to lack capacity because of mental disorder or inability to communicate due to a physical condition is provided by the Adults with Incapacity (Scotland) Act asp 4 (2000). The burden of proof falls on the person who seeks to assert that capacity is lacking and the Civil Standard applies. In 2018, the Scottish Government has been consulting on changes to changes to current guardianship arrangements, emergency placements and restrictions on liberty.

In Northern Ireland, there is the Mental Capacity Act (Northern Ireland) c. 18 (2016). This is a fusion of mental capacity and mental health legislation and it also incorporates criminal justice provisions. It provides a framework for decision-making which includes a statutory presumption of capacity, a requirement to support decision-making, mechanisms to allow individuals to plan for times that they do not have capacity, and safeguards to protect the rights of individuals when compulsory interventions or substitute decisions are required. It removes the potential for a person to be treated for a mental health condition against their wishes if he or she retains the capacity to refuse such treatment, putting it on a par with the rights that individuals currently enjoy to make decisions regarding physical health treatment. As with the comparable legislation in the other devolved nations of the United Kingdom, it falls to the person questioning the individual’s capacity to establish the lack of capacity.

This book is exclusively focused on the MCA (2005) because this reflects the geographical area of clinical practice of the author. However, in terms of clinical assessment, there are likely to be significant areas of relevance to practice across all of the devolved nations of the United Kingdom.

The key elements of the Mental Capacity Act (2005)

The main aim of the MCA (2005) (according to the Code of Practice: Department for Constitutional Affairs, 2007) is, “to protect people who lack the capacity to make particular decisions, but also aims to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so”. The Code of Practice is an excellent source of advice and provides many useful illustrative examples of relevance to clinicians.

The MCA (2005) does not replace Common Law nor can it overpower the provisions of the Mental Health Act (2007). The Mental Health Act provides a statutory framework for treating mental disorder in the absence of consent (which absence could either be due to a lack of capacity or to a valid refusal of treatment). Whereas the MCA (2005), as outlined above, provides a framework for decision-making on behalf of someone who lacks the capacity to do so for themselves.

A particular strength of the MCA (2005) is that it is founded on five robust principles, derived from the European Convention on Human Rights (ECHR), and outlined in section 1 of the Act:

1 A person must be assumed to have capacity unless it is established that he lacks capacity;

2 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;

3 A person is not to be treated as unable to make a decision merely because they make an unwise decision;

4 An act done, or decision made, under this Act on behalf of a person who lacks capacity must be done, or made, in their best interests; and,

5 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.

Unlike the previous legal framework which predated this Act, an individual cannot be deemed to lack capacity due to a clinical diagnosis (for example, schizophrenia or learning disability) or due to having made what might be deemed an unwise decision (for example, giving away significant resources to a casual acquaintance). Considerations of capacity are not so simplistic as to be binary; in the wording of the legal test of capacity there is a recognition that mental faculties can fluctuate. This consideration gains weight in direct proportion to the magnitude of the decision being made. For instance, the purchase of a pair of shoes is of less concern than the purchase of a house; both require a financial-based decision, but one carries greater potential consequences than the other.

The Act enshrines in law a two-stage test of mental capacity. Stage One requires there to be evidence of an impairment in the functioning of mind or brain, whether temporary or permanent, which renders the protected party (“P”) unable to make a specific decision at the time it needs to be made.

Once stage one has been satisfied, Stage Two asks can the person:

• understand the information relevant to the decision;

• retain that information for sufficient time to make use of it;

• use or weigh up that information in the process of making the material decision; and,

• communicate his/her final decision (by whatever reliable means).

Decision-making on behalf of someone who lacks capacity

The first step is to ensure that all realistic and appropriate efforts to maximise P’s capacity to make the decision for himself/herself have been attempted. But, if it is, therefore, reliably established that an individual lacks the requisite capacity to make the relevant decision at the material time, the Act provides a clear framework for decision-making on his/her behalf. Moreover, once it is clearly established that the individual lacks mental capacity to make the decision in question, there is a presumption of continuance whereby the incapacity is deemed to continue until the contrary is proved by acceptable evidence as helpfully explained by the recently retired Senior Judge in the Court of Protection, His Honour Denzil Lush (1997, p.3).

• Lasting Power of Attorney (sections 9 to 14 of the Act): this must be drawn up and registered by the individual whilst they retain mental capacity so that it can be brought into effect if and when that capacity is no longer assessed to be present. Lasting Powers of Attorney can be for financial matters (property and affairs) as well as for personal welfare (health care and consent to treatment) decisions. In 2016, less than 7 per cent of applications for Lasting Powers of Attorney resulted in the Court making an Order (Family Court Statistics Quarterly, https://data.gov.uk/dataset/a89d2f04-86ad-4f75-a4b1-8204dba8e0ed/family-court-statistics)

In 2014, MORI undertook a poll of the general public on behalf of the Office of the Public Guardian to garner opinion as to LPAs. The results indicated that:

◦ 45 per cent of those aged over 45 knew nothing about LPAs;

◦ 61 per cent were not interested in setting one up in the future; and,

◦ 40 per cent of those asked were not interested in drawing up and registering an LPA as they did not believe that they would lose capacity, did not care or did not want to “tempt fate”.

• Best Interests (sections 4 and 5 of the Act): Section 4 relates to the process of considering what might be in an individual’s “Best Interests”. There are two streams of thought: “what is objectively best for the person” as opposed to, “what would they have done or decided for themselves” if they did not lack the requisite capacity, (sometimes referred to as “substituted judgement”). The decision makers need to identify and then consult with the relevant significant others, they need to ascertain the past views of the individual on whose behalf the decision is being made, they need to encourage and promote involvement of the individual as far as is practicable; and they also need to consider whether or not the decision could be delayed until such time as decision-making capacity may return. Series et al (2017 ) refer to local authorities using a Personal Welfare application to the Courts as a means of achieving actions which are considered to be in the best interests of the person (p.5).

The Supreme Court offers clarity, in relation to adult care in N v ACCG & Ors,¹ “it is axiomatic that the decision-maker can only make a decision which P himself could have made. The decision-maker is in no better position than P.” The most eloquent summary is provided in Re Jones,²

in the ordinary case, the Mental Capacity Act is not a vehicle for imposing on people views, wishes and feelings that clearly are contrary to those they held before losing capacity, do not hold now and would not hold if they regained capacity, however right those views may be, and however unworthy P’s views are according to most people’s standard. The onset of mental incapacity is not an opportunity for moral correction.

(paragraph 65)

What happens when “Best Interests” cannot be agreed upon by key parties? For example, consider an elderly gentleman with global brain impairment following multiple strokes. He has a dense right hemiplegia (severe right sided weakness/paralysis) and severe cognitive impairment, including confusion and disorientation leading to verbal and physical agitation.

Professional rehabilitation clinicians undertook a full assessment of his mobility and potential for improvement. It was decided by the clinical team that he would never be able to reliably or safely stand or walk again. However, mobilising him using the least restrictive piece of equipment called a “Stedy” increased his confusion and disorientation and he would try to stand and become agitated when prevented from trying to walk.

1 [2017] UKSC 22 (paragraph 1)

2 [2014] EWCOP 59

The decision was taken to change equipment for mobilising this gentleman to a hoist. The main difference between the two aids is that the former requires active participation whereas the latter allows complete passivity. It was considered that the latter piece of equipment achieved the outcome of moving him safely without providing him with sensory cues which he interpreted as encouragement to stand and walk. This change of equipment greatly reduced his falls risk and also removed the risk to staff of him trying to (unsafely) mobilise when in the Stedy and staff having to catch him when he lost his balance, which happened with alarming frequency.

However, his family were unaccepting of the professional assessments that his confusion and disorientation led him to attempt to stand and walk when it was not safe to do so. The context was that the gentleman’s injury had been admitted as arising from clinical negligence by hospital-based staff so the family came to any discussions with health professionals from a position of distrust and disbelief as they believed that he would walk again and would not accept evidence to the contrary. This led to stalemate and the family threatened the clinical team with legal action if the Stedy was not reinstated. A Best Interests meeting was called with the Local Health Board (this is the Wales equivalent of a Clinical Commissioning Group in England). After consideration of all of the evidence, all involved, except the family, accepted use of the hoist to mobilise the gentleman as being in his best interests.

Next steps would typically be to move to mediation/dispute resolution. However, in an attempt to renegotiate the relationship with this gentleman’s family, who were key to moving forward, considerable efforts were made on the part of the professionals involved to hel...

Table of contents

• Cover
• Praise
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Foreword
• Acknowledgements
• Part I Introduction
• Part II Case Presentations and Commentaries
• Part III
• Index