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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
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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:
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.
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.
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 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.
The so-called ‘rules for assessing mental capacity’ are summarised here:
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 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:
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).
Someone with parental responsibility for a child has the legal right to
make decisions about them and their upbringing.
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
explain how assessing mental capacity often involves balancing risk and
safety against choice and wellbeing
describe three common issues for older people that are linked to mental
capacity: driving vehicles, daily living routines and living alone
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: