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INTRODUCTION

you may be interested in this course because you want to support a family
member or a friend, or because you volunteer in a care setting, or because
aspects of your work require you to understand it. You may not think about
mental capacity in terms of its relevance to you personally. You may even feel
rather daunted by the term ‘mental capacity’ as it can sound complicated and
legalistic.
Mental capacity is simply the ability of a person to make decisions for
themselves. Such a decision might be one that is taken daily, like what to have
for breakfast, or one that concerns something more significant, like where to
live. Where this ability is absent a person is said to lack capacity and may need
help to make decisions.
One of the main themes running through this course is the idea that all adults
need to understand what mental capacity means and its importance in their
own lives

There are differences between nations in the United Kingdom (UK) in how
the law on capacity has come about and it would not be easy to produce a
short course that covers all these variations or the reasons behind them.
However, there are many points of comparison and it is useful to consider
why the differences exist and what they tell us.
You begin this course by finding out what is meant by mental capacity. You
will explore the definitions that exist and examine why understanding
capacity is important and for whom. You will also consider why this is a
contemporary important issue.
By the end of this week you should be able to:
define mental capacity
explain why understanding mental capacity is important and for whom
describe mental capacity in terms of how it can change and fluctuate
over time.
What is mental capacity?
Mental capacity is not just a concept that is important for people using
social and healthcare services. They are in need of health- or social care for
reasons which may also mean they need support with decision making.
Mental capacity is relevant to everyone else too. All of us are likely to need
care when we are older. Many of us will be diagnosed with dementia and
will find our ability to make decisions for ourselves declines. Even before old
age, accidents and unforeseen illnesses can occur that can reduce our
mental capacity. Life is unpredictable. Making sure we understand the
i li i f h i l i hil h i k bi
implications of not having mental capacity while we have it can make a big
difference to our lives and to those around us if we lose it.

A useful definition of mental capacity which encapsulates its key features is:

Mental capacity is the ability to make a particular decision or to take a


particular action by any person for themselves at the time the decision or
action needs to be taken.

Three points about mental capacity

The following three points about mental capacity are particularly important
and form the basis of this course:
Mental capacity is a matter that relates to everyone, not just people with
a disability or mental impairment.
Mental capacity depends on the ability of the person and can change
with time.
Mental capacity, or the extent to which a person may lack it, involves an
assessment and judgement of their ability to make a particular decision.

People with learning disabilities


It has been estimated that just over a million people in England (2% of the
population) have a learning disability. The numbers known to learning
disability services are much smaller: an estimated quarter of a million
people. (Figures taken from Public Health England, 2015.)
People with alcohol and drug problems
More than 9 million people in England drink more than the recommended
daily amount (Health and Social Care Information Centre, 2017). In 2014
there were 8,697 alcohol related deaths in the UK (Health and Social Care
Information Centre, 2017). People in this group are more likely to have
impaired mental capacity because of resulting mental health issues, the
temporary lack of capacity when drunk and the effect that severe
addiction/craving has on decision making.
People who have suffered brain injury
Brain injury can occur at any age and from a number of causes.
People with mental health needs
Mental ill-health affects people in the UK and globally. Problems range from
anxiety and depression to hearing voices and psychoses.
One in 50 people suffer from bi-polar disorder, and one in 100 from
psychotic disorder (NHS Digital, 2014).
People in these groups may all have reduced mental capacity. Two million
people in England and Wales are estimated to lack capacity (SCIE, 2016).
But who else is affected as a result?

Who else is affected?


Alongside people who may lack mental capacity are those who are affected
indirectly: people who live with and care for them, neighbours, and workers
in shops, banks and solicitors’ offices. They all need to be aware of the
impact that a lack of mental capacity can have. As well as family and friends
who offer informal care and support, some people have a formal role in
responding.

Mental capacity can fluctuate


In Week 1 so far, you have learned about the definition of mental capacity
and have started to think about who is affected by it, both directly and
indirectly. Mental capacity is however not a static matter. People’s ability to
make particular decision one day but not the next, and can then see their
mental capacity return the day after.

Mental capacity is defined as the ability to make decisions.


Mental capacity relates to a particular decision, at a particular time. The decision can be an
everyday matter such as what to wear or a more significant matter such as where to live.
When a person is judged to be unable to make a decision for themselves they are said to lack
mental capacity.
Everyone needs to understand the concept of mental capacity because even if you and your
loved ones have mental capacity at the moment, it’s quite possible this will change.
People may lack mental capacity due to dementia, mental health problems, learning disabilities,
brain injuries, substance misuse, illness or treatment of illness.
A person’s mental capacity can fluctuate from day to day.
l i h d t di t l it i i t t df h
explain why understanding mental capacity is important and for whom
describe mental capacity in terms of time and decision making

Types of decision

We all make decisions every day of our lives. Some of these decisions are
relatively minor ones, others are bigger. Most of us are able to make these
decisions by ourselves, although we may seek further information and
advice for more important or complex ones.
Decisions are made in different contexts. Some cannot be reversed; some
decisions involve choosing between alternative courses of action; some are
made in times of uncertainty.

You may feel able to make everyday decisions fairly easily; you might just
need to know what the weather will be like, for example. For bigger
decisions, you probably need to gather information over a longer period and
discuss it with a friend or relative, before then relying on your own
judgement to make the decision. In other words, you are able to, or have the
mental capacity to, make a decision for yourself, albeit with additional
information. This course is primarily concerned with people who no longer
have this capacity or whose capacity fluctuates.

Exceptions

When a person lacks mental capacity, i.e. is unable to make a decision for
themselves, or when their mental capacity fluctuates, other people can
share in the decision making or make the decision on their behalf. These
can be governed by legislation. They include:
getting married or entering into a civil partnership
voting at an election.
placing a child for adoption
How do we make decisions?
It is easy to take our ability to make a decision for granted, but a number of
factors underlie it: information, confidence, experience and the knowledge
of likely consequences of different courses of action.
In the video below, a man with learning disabilities discusses how he makes
decisions about money with a social worker. Their discussion illustrates how
someone in these circumstances can be supported to manage their own
money.

Box 1 lists some of the factors that enable someone to make decisions for
themselves. Support should be provided in all these areas to ensure that all
possible steps are taken to enable the person to make decisions for
themselves.

Box 1 factors that enables decision making

Impartial advice: no bad influences or inappropriate pressure


Information from trusted sources
Ability to realistically appraise the options available
An understanding of the consequences
An understanding of the context
Appraisal of prior decision making by self and others
Previous experience of good and successful decision making
The opportunity to put a decision into action.
A person should be given all the help they can, in an encouraging
environment, to make decisions for themselves before they are judged as
being unable to do so. But what if they make a decision that seems
eccentric or even unwise? Should someone else make the decision for
them?

Unwise decisions

Does making an unwise decision mean that you lack capacity? We can all
think of examples of decisions of our own which, in retrospect, were
unwise. But people may think of someone else’s decision as ‘unwise’ for a
number of reasons: because it makes them feel uncomfortable, or puts that
person’s welfare at risk, or just because that person is too old, mentally
impaired, too young or commercially inexperienced. The video below
illustrates the tensions that can arise when someone who is being cared for
decides to do something that seems unwise to their carer.
Some unwise decisions have very serious consequences. What if an
alcoholic is judged to have capacity but decides to drink himself to death
and refuse all treatment? Or an anorexic woman has signed an advanced
directive to refuse treatment and wants to die? In these circumstances it
becomes difficult to know what best to do, especially when people have
conflicting attitudes and values. It can be very difficult and painful for friends
and family. You will now explore examples of these cases.

Shared decision making

Shared decision making occurs when someone needs help with making
some or all decisions. It concerns the continuous involvement of an
individual other than the person whose decision it is. In terms of the
decision making as it is being considered in this course, the person should
be included as much as possible whether or not they have capacity. As far
as possible, the decisions of a person who lacks mental capacity should be
shared decisions, rather than decisions made on their behalf by someone
else.

Box 2 People who may be decision makers

The individual with or without capacity


Next of kin – if they have capacity
Members of the wider family
Friends
Members of community groups, churches, social organisations
Employers
Care staff
C h ff
Care home staff
Social workers and social work managers
GPs and medical staff, dental staff
Police
Lawyers
Applying the test for assessment of mental capacity

Before the implementation of mental capacity legislation, there was no


specific clinical or legal procedure for assessing mental capacity.
Assessments, where they did take place, were based upon medical
outcomes and diagnosis. Over the years, this method was increasingly
replaced by what is known as a functional approach. However, for most
health and social care workers and informal carers such as relatives and
friends, formal guidelines did not exist. Meanwhile, the legal test that was
usually applied was that contained within the case known as Re C, relating
to a man with a diagnosis of schizophrenia who was deemed capable of
making the decision to refuse the amputation of his gangrenous foot.

Even following the implementation of mental capacity legislation, it remains


the case that there is no set procedure for the assessment of capacity.
There are no specific forms that must be filled in, nor is there a certificate of
incapacity (although in some cases in Scotland, general practitioners must
complete a certificate). You will consider why this is shortly.
The test for mental capacity

For situations where there may be reason to question a person’s mental


capacity to make a certain decision at a specific time, the Mental Capacity
Act 2005 sets out a two-stage test based on a combination of functional and
diagnostic methods. The test is outlined in Box 3.
Box 3 The two-stage test of capacity
Stage 1: The diagnostic test of mental capacity
Does the person have an impairment of, or disturbance in the functioning
of the mind or brain (it does not matter if this is permanent or
temporary)?
Stage 2: The functional test of mental capacity
If the answer is yes, does it make the person unable to make the
decision? This can be found out if, after all appropriate help and support
to make the decision has been given to them, they cannot:
a. understand the information relevant to that decision
b. retain the information
c. use or weigh up that information
d. communicate their decision.
If any of these apply, the person lacks the mental capacity to make the
decision.
The test of capacity involves a two-step process involving the diagnostic and
the functional. It is also important to note that it
.

What about more complex situations?

Where more complex or serious decisions need to be made, it may help to


involve a professional with skills and experience in assessing mental
capacity. They may be medical, financial or legal professionals. Their
expertise tends to be very useful in deciding whether a person has capacity
or not, including in diagnosing whether they have an impairment of or
disturbance in the brain.
In making any decision on behalf of someone who lacks capacity, the best
interests principle should be applied. This is that anything done for or on
behalf of a person who lacks mental capacity must be done in their best
interests.

‘Rules’ for supporting and assessing

The so-called ‘rules for assessing mental capacity’ are summarised here:

1. Start by thinking I can make a decision.


2. Do all you can to help me make a decision.
3. You must not say I lack capacity just because my decisions seem
unwise.
4. Use a best interest checklist for me if I can't make a decision.
5. Check the decision does not stop my freedom more than needed.

what have you learned over the last four weeks? You now know that mental
capacity is simply the ability to make decisions for yourself, and that the first
three principles of mental capacity legislation say that regardless of a
person’s diagnosis or disability, they should be presumed to have mental
capacity.

You also learned that as much support as possible should be given to a


person to help them make a decision before it is decided that they lack the
mental capacity to do so. These principles emphasise that assessment
should be based on the process of decision making and not on
the content of a decision.

You learned that what appears to be an unwise decision must not be taken
as evidence that the person lacks mental capacity; nor should a person’s
age, appearance, condition or behaviour affect a judgement of their mental
capacity.
Finally, you looked at how to assess mental capacity using the two-stage
test and who can do this.
Over the next three weeks you look at three different types of people who
may lack capacity.
You should now be able to:

explain what is meant by the assessment of mental capacity


describe who undertakes an assessment of mental capacity
describe the test for assessing mental capacity and how it is applied
describe how an assessment might be undertaken.
Mental capacity

Mental capacity is a complicated enough topic in relation to adults, for


whom the presence or lack of capacity is often highly debatable. For
children, however, and especially for young children, there is a general
presumption of incapacity, not capacity. Of course, this evolves through
childhood, but, as we all know, every child is different. While chronological
age is important, it is not the only factor that determines whether decision
making should be at the discretion of the parents or the children
themselves. This week you explore these issues in greater depth.
By the end of this week you should be able to:

describe how a child’s presumed innate incapacity to make important


decisions evolves through childhood to capacity
explain when and how parental decision making may be shared with or
delegated to ‘competent’ children
explain how the age of 16 is an important threshold for asserting the
legal presumption of capacity
describe some of the difficulties and ambiguities relating to capacity for
young people aged 16 and 17
describe two examples of exceptional situations where the capacity of a
child or young person may be especially compromised: child sexual
exploitation and the interface with mental health services and law
At what age is it legal?

The issue of mental capacity in children is complex. There is a natural and


entirely appropriate acceptance in society that children have a different and
usually more limited capacity to make safe and reliable decisions for
themselves and others compared to adults. Their ability to make decisions
depends on both their chronological age and level of development. Parents
and carers therefore become used to making decisions on behalf of
children.

The question of when a child’s mental capacity is presumed and decision


making handed over, and for which decisions, lies at the heart of the
parenting relationship. Some decisions are interpreted differently in different
cultures and different families, and can change through the generations. The
age for some thresholds, however, is formally defined in law.

For example, the age of criminal responsibility – the age at which someone
can be charged with a criminal offence and brought before a court – is a
significant threshold. It is the age at which a child is considered to have
sufficient maturity and mental capacity to know the difference between right
and wrong in relation to criminal behaviour and thus to be legally
accountable for their own actions. In England, Wales and Northern Ireland
this age is set at 10 years. In Scotland it is 8 years, although the age at
which a child can be prosecuted is 12. The United States and Mexico set
their age of criminal responsibility at 6 years, Ireland 12 years, Italy 14
years, Portugal 16 years, and Argentina and Peru 18 years (NationMaster,
2014).

Parental responsibility

You now look at the decision making that parents undertake on behalf of
their child. The term used to describe this in England, Wales and Northern
Ireland is parental responsibility. In Scotland, the concept of parental rights
is linked directly with parental responsibilities.

Where the law in Scotland defines a person as a child that increases the
protection that the law offers them but decreases the child’s own personal
freedoms. The law likes clear cut-off points. In Scotland there have always
been a number of important ages at which a child increases their ability to
take control of their own life. The age of 12 is important because a child can
make a will at that age. A veto to an adoption order exists from the age of
12. The age of 16 is of crucial importance. At 16 a person may marry. 16 is
the age at which compulsory education might come to an end. The age of
18 is of less importance. One of the few remaining consequences of
reaching the age of 18 is the right to vote. The age of 25 is also important.
(The Scottish Parliament, 2013).

Parental responsibility in practice…


Mother: Don’t do that, Janice!
Janice (child): Why not?
Mother: Because I said so.
Below are some key facts about parental responsibility.

Someone with parental responsibility for a child has the legal right to
make decisions about them and their upbringing.

Anyone who is considering making an important decision on a child’s


behalf must obtain the agreement of all who have parental responsibility.
The term ‘parental responsibility’ refers to ‘all the rights, duties, powers,
responsibilities and authority which by law a parent of a child has in
relation to the child and his property’ [Children Act 1989, s.3(1)].
In Scotland, parental ‘rights’ relate to where the child shall live, the right
to direct the child’s upbringing and the right to maintain contact with
them; and ‘responsibilities’ are vested in the child’s mother and father, if
they were married, and later for the unmarried father if they
subsequently are registered as the child’s father [Children (Scotland) Act
1995, ss.1-3]. This is also the case in England, Wales, and Northern
Ireland.
Parental responsibility can be acquired by others, but only through
formal court procedures. This tends to be relatives, local authorities and
adoptive parents.
The law is very careful to articulate the nature and parameters of parental
responsibility and how it is administered in the best interests of children.
Legal advice should always be sought if there is any uncertainty about who
holds parental responsibility when significant decisions are about to be
made. Also, the extent of parental control changes through childhood and
generally diminishes to zero at the age of 18, with some exceptions to
decision making which are defined by the courts through evolving case law.

Competence to give consent

Children may be in a position to make some decisions relatively


independently, but there may be a question about whether they have the
mental capacity to make others. For example, children under 16 are not
necessarily considered legally competent to give consent to (or refuse)
medical treatment. However, the person administering the treatment must
assess whether the child has sufficient maturity to understand what is being
proposed, even if they are under 16. If it is considered that they do and that
the treatment is in the child’s best interests, it may go ahead even if a
person with parental responsibility does not agree. This is known as Gillick
competency.

Victoria Gillick had four daughters. In January 1981 she wrote to her local
health authority, West Norfolk and Wisbeach, asking them to confirm that
her daughters would not be given any contraceptive advice under the age of
16 without her prior knowledge and consent. The health authority replied
that it would be unusual to give this advice without involving a child's
parents, but that ultimately the decision would rest with the medical
practitioners involved and depend on their clinical judgement. There then
commenced a protracted legal challenge initiated by Victoria Gillick. In
1984, her challenge was not accepted in the High Court, but later the Court
of Appeal found in her favour. However, in 1985 the House of Lords
reversed the Court of Appeal judgement (Scarman, 1985). In sum, it is now
legal to decide whether a child is able to give consent to medical treatment
on the basis of an assessment of the child's maturity and understanding of
what is being proposed. This is known as an assessment of ‘Gillick
competency’.

Older people

Most older people have a lifetime of experience in making decisions for


themselves and others, as parents, carers, employees and citizens. To be
assessed in later life as no longer having the mental capacity to function in
this way is likely to be disorientating and distressing. This week you consider
the mental capacity of older people.

By the end of this week you should be able to:

explain some of the attitudes towards and expectations of older people


in UK society

explain how assessing mental capacity often involves balancing risk and
safety against choice and wellbeing

define what it means to be a ‘person’

describe three common issues for older people that are linked to mental
capacity: driving vehicles, daily living routines and living alone

outline three mechanisms where decision making is delegated or wholly


assumed by others: power of attorney, advanced decisions and the
Court of Protection.

Summary
This week you have reviewed and reflected on the learning you have done
in this course and identified any further steps you would like to take. You
have also listened to practitioners talk about what mental capacity means
for the general public and for practice as it is applied in each nation of the
UK. The language used and the timing of legislative changes might differ
slightly, but overall, matters of mental capacity in all four nations are based
on the same principles, values and attitudes. In turn these principles
underpin actions, central among which are the assessment of mental
capacity and supporting someone who may lack capacity or whose capacity
fluctuates. The course finishes with the same message with which it began:
mental capacity is relevant to us all.
You should now be able to:

describe possible changes in mental capacity law and outline key


themes
describe some of the particularly useful or surprising things you have
learned on this course
identify whether you wish to make any plans for your own situation in
relation to mental capacity and if so, how.
Other Open Learn content you may be interested in...
Courses
Making sense of mental health problems
Challenging ideas in mental health
Interactive
A Support Net: Can you help someone in need?
Articles
Cultural differences in mental health

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