- In this guidance document, we set out assistance in relation to a number of situations which been shown in practice to cause particular difficulties, either because thinking about capacity is having to take place in challenging circumstances or of because of the way in which the wording of the MCA 2005 appears to map onto the realities of practice.
A: Difficulty in engaging the person in the assessment
- A problem that can be encountered in practice is where it is difficult to engage the person in the process of assessment.
- It is important to distinguish between the situation where the person is unwilling to take part in the assessment, and the one where they are unable to take part. As Hayden J emphasised in Re QJ: “[i]t is important to emphasise that lack of capacity cannot be established merely by reference to a person’s condition or an aspect of his behaviour which might lead others to make unjustified assumptions about capacity (s.2(3) MCA). [In this case, a]n aspect of [the person’s] behaviour included his reluctance to answer certain questions. It should not be construed from this that he is unable to. There is a good deal of evidence which suggests that this is a choice.” QJ v A Local Authority & Anor  EWCOP 7.
- However, you do not need mechanically to keep asking the person about each and every piece of relevant information if to do so would be obviously futile or even aggravating.See AMDC v AG & Anor  EWCOP 58 at para 28(h) per Poole J, talking about a report to the Court of Protection, but equally relevant to any other report, including for purposes of e.g. DoLS.
What you need to do is:
- To consider what steps could be taken to assist the person to engage in the process; and
- To record what steps were taken and what alternative strategies have been used.
- It is also important to think of ways in which you can persuade the person to take part, for instance by explaining to them that helping you – the assessor – is likely to help them, because it will maximise the chances that you will find that they are able to make the decisions.
Examples of creative solutions to problems with engagement
It is often helpful to liaise with others about what alternative strategies might help. Solutions in reported cases have included
- identifying whether the reason for non-engagement is embarrassment about particular issues and finding ways of assessing capacity which do not require confronting the person with the issueSee Re FX  EWCOP 36.;and
- giving the person an element of choice as to who will carry out the assessment.Wandsworth Clinical Commissioning Group v IA  EWCOP 990.
Remember that you could be the problem and that it may not be your fault: you could simply be the ‘wrong’ gender or from the wrong cultural background.
- If you think that the difficulty is because someone else is putting the person under pressure not to talk to you or engage with you, you may need to think about asking the High Court for help under its inherent jurisdiction. However, you should always remember that the Court of Protection can make an order requiring the person who is in the way to allow access where it has reason to believe that the individual in question may lack capacity.See, for instance, Re SA  EWCA Civ 128.
- Ultimately, however, it is not possible to force a person to engage in a capacity assessment. You will therefore need to consider whether you have enough surrounding evidence to come to a reasonable belief about capacity or incapacity. Reasonable belief about incapacity will be needed if steps are going to be taken on the basis of s.5 MCA 2005. If the stakes are high, for the person or others, you may need to make an application to court to decide whether the person has or lacks the capacity to make the relevant decision.
B: Assessing capacity in a risky situation
- In some situations, assessing capacity seems to have very high stakes for all concerned. For instance, a person might not be willing to have a low-burden medical treatment which all the medical professionals involved consider will save their life. Or a person might be expressing a desire to want to keep living in a situation of self-neglect which social workers consider to be dangerous for them.
- In some situations, you may feel that the stakes are so high that the only appropriate course of action is to take the matter to court for a judge to reach the decision whether the person has or lacks the capacity to take the decision in question (and, if they do not, what should happen at that point).A good example of such a case is Kings College NHS Foundation Trust v C and V  EWCOP 80.
- Outside the courtroom setting, there may be things you can do to reduce the risk. For instance, in some circumstances, you might simply be able to delay having to reach a conclusion about their decision-making capacity whilst providing them with support. You might also be able to propose another course of action – for instance a different medical treatment – which meets the concerns of everyone involved, but does not appear to provoke the same reaction on the part of the person.
Remember: capacity is not always the crucial issue
There are some situations where the person’s capacity is not, in fact, the determinative question. This is most obviously the case in relation to admission under the Mental Health Act 1983. Whilst the person’s capacity is relevant to the question of whether or not they could be admitted informally, if you are making decisions under the Mental Health Act 1983, you are ultimately having to ask yourself whether the person meets the criteria for admission (whether for assessment or treatment). These criteria are based upon mental disorder and risk, not decision-making capacity. If you consider that the person meets the criteria for admission under the MHA 1983, and (for whatever reason) the person appears not to wish to be admitted, then you should apply the criteria and process within the MHA 1983 without being distracted by questions of decision-making capacity.
Similarly, if the person is saying that they are at risk of suicide, asking whether or not they have capacity to take their own life is in many ways a red herring – the question, again, is one of risk. In the context of potential admission under the MHA 1983 it falls to be considered by reference to the criteria of the MHA 1983.
- However, if – for whatever reason – you need to reach a conclusion about the person’s capacity, then it is important to be clear that none of the principles in the Act mean that you have to ignore risk. You do need to be careful not to jump from the fact that a person is making a risky decision to the conclusion that the person lacks capacity to make it, and you cannot simply proceed to take decisions on a best interests basis because it seems like the right thing to do. But the courts have made clear that the European Convention on Human Rights imposes an obligation on public bodies not simply to accept at face value a person’s decision which puts them at risk if there is proper reason to think that they might not have the capacity to make it.In Arskaya v Ukraine  ECHR 1235, the European Court of Human Rights found a breach of the Article 2 ECHR operational duty where the doctors took refusal of life-saving treatment where … Continue reading
- How, then, to make sure that you do the right thing?
- In thinking about P’s capacity in this context, and for reasons explained in more detail in this paper here, you should proceed on the basis that:
- The more serious the consequences for P of the decision, the more rigorous the steps that will be expected of the assessor before the determination is reached whether or not the person has capacity;
- In asking whether P has capacity to make a decision which has particularly risky consequences for them, the information that they must be able to process includes those consequences. Section 3(4) MCA 2005 makes this clear.
- You can – and should – therefore test whether P can understand, retain, use and weigh the information that one course of action poses real risk to them, but another would (everyone else concerned considers) save their life, or otherwise be much safer. Testing in this way is not the same as confusing the outcome of the decision with their ability to make it, which the courts have made clear you cannot do.See PC and NC v City of York Council  EWCA Civ 478 at paragraphs 53 and 54 and Kings College NHS Foundation Trust v C  EWCOP 18 at paragraph 29. Rather, it is an important safeguard to ensure that whatever decision is reached is reached on a proper basis.
C: Fluctuating capacity
- Some people’s ability to make decisions fluctuates, or changes, because of the nature of a condition that they have. This fluctuation can take place either over a matter of weeks or months (for instance where a person has bipolar disorder with cycles of mania, depression or mixed states) or over the course of days (for instance a person with delirium with states of confusion that arise in association with, for example, severe infection) or over the day (for instance a person with dementia whose cognitive abilities are significantly less impaired at the start of the day than they are towards the end).
- Fluctuation of mental state does not entail fluctuating capacity – symptoms (e.g. mood and anxiety symptoms, symptoms associated with dementia) may be highly changeable without necessarily causing changes to a person’s ability to make decisions.
- If it is a one-off decision, you may be able to delay taking the decision until the impact of the person’s condition upon their decision-making abilities has diminished. If it is not possible to put the decision off, then you should either take the minimum action necessary to ‘hold the ring’ pending the person regaining decision-making capacity or you should move to best interests decision making.
- At the point when mental capacity has been regained, you should record the person’s decision, and, at least in any case where there may be a challenge later to the decision on the basis that they lacked capacity, record why you consider that the person had capacity to make it. A, B and C v X and Z  EWHC 2400 (COP Depending upon the context, you should also record the discussions held and what the person would want in the event that they lose capacity in future to make similar decisions. This means that, if further decisions then need to be taken in their best interests, they can be taken in knowledge of what they would want. The MHJ project has prepared detailed guidance about how to do advance care planning in the context of those with bipolar disorder, which with due alteration of details, is also applicable to other situations where a person may have a condition which fluctuates.
- Some decisions are not one-off and need to be repeated over a period of time. Examples include the management of property and affairs,A, B and C v X and Z  EWHC 2400 (COP) at paragraph 37. or the management of a physical or mental health condition which requires a multitude of ‘micro-decisions’ over the course of each day or week. Although capacity is time-specific, in such a case, it will usually be appropriate for you to take a broad view as to the ‘material time’ during which the person must be able to take the decisions in question. If the reality is that there are only limited periods during the course of each day or week that the person is able to take their own decisions, and the decision-making is not ‘macro’, then it will usually be appropriate for you to proceed on the basis that, in fact, they lack capacity to decide. This is particularly so where the consequences for the person are very serious if they are taken to have capacity when, in reality, this is only true for a very small part of the time and for some aspects of the decision making only. The courts have shown themselves increasingly willing to take this approach,See Cheshire West And Chester Council v PWK  EWCOP 57. or, closely-linked, the approach of ‘zooming out’ to ask themselves a macro-question if appropriate.See Royal Borough of Greenwich v CDM  EWCOP 32 (‘macro’ decision about the management of diabetes in the context of rapidly fluctuating capacity to take all the many ‘micro’ decisions … Continue reading
- If the approach taken here is adopted, you should keep the person’s decision-making ability under review, and reassess if it appears that the balance has tipped such that they have, rather than lack, capacity to take decision(s) more often than not and that the capacity to decide the appropriate macro-question is regained.
D: Executive functioning
- Another common area of difficulty is where a person – for example a person with an acquired brain injury – gives superficially coherent answers to questions, but it is clear from their actions that they are unable to carry into effect the intentions expressed in those answers. It may also be that there is evidence that they cannot bring to mind relevant information at the point when they might need to implement a decision that they have considered in the abstract. Both of these situations are frequently referred to under the heading of ‘executive dysfunction.’ Executive function has also been described by Cobb J as “the ability to think, act, and solve problems, including the functions of the brain which help us learn new information, remember and retrieve the information we’ve learned in the past, and use this information to solve problems of everyday life.”A Local Authority v AW  EWCOP 24.
- It can be difficult in such cases to identify whether the person in fact lacks capacity within the meaning of the MCA 2005, but key questions can be whether they appreciate (or have insight into) their own deficits and whether they are able to detach themselves from their impulses such that they can think through the decision when they need to. These types of inability can show themselves as a mismatch between an ability to grasp or respond to questions in the abstract and to act when faced by concrete situations. It is important to emphasise that if you do not carry out a sufficient detailed capacity assessment in such a situation – and, in particular, one which simply relies upon ‘self-reporting’ by the person – you run the risk of exposing the person to substantial risks.
E: Interpersonal influence
- In some cases, P may struggle to exercise their capacity due to external factors. We broadly refer to these factors as interpersonal influence. The MCA does not explicitly mention what to do when P’s relationships might affect their capacity. Nevertheless, as our research shows, relational issues frequently arise during capacity assessments and in the Court of Protection.
- Drawing on that research, we suggest the following guidance below, although we should emphasise that this is an area where the courts are still finding their way.And, as research carried out by another member of the MHJ project has shown, that there are still underlying debates about the point at which “support” should be seen as shading into “undue … Continue reading
- A professional assessing capacity needs to be mindful of interpersonal influence. Decisions take place in a social context and the distinction between support (enhancing decision making through relationship) and interpersonal influence (the opposite) can therefore be made. Anyone can be subject to a degree of interpersonal influence for any decision, though in most cases, it is still legitimate to think of the person’s final decision as being in a real sense their own.
- If you suspect that P is being subjected to interpersonal influence which means that they are struggling to make their own decision, you should first of all take practicable steps to support P them to do so.For discussion about supporting decision-making generally, see the main guidance document. Common practices include meeting independently with P and engaging with their wider support network, as well as other professionals. In some situations, family therapy might also be appropriate.For an example from the courtroom setting, see London Borough of Brent v NB  EWCOP 34. Collecting collateral information about P’s longer-term situation may give some indication as to P’s “authentic” will and preferences, as separate from the picture given by the third party.
- As this research paper addresses in more detail, it is also important to understand that it is possible to ‘house’ relational factors within the test for capacity contained in the MCA 2005. In other words, there is case-law to support the proposition the assessment of capacity can take into account the interaction between the pressure that P is under and the impairment in the functioning of their mind or brain which makes it more difficult for them to understand, retain, use or weigh relevant information. For example, if P has an anxiety disorder that affects their ability to use or weigh, they might struggle even more because of a specific person who makes them feel more anxious. If the specific person is a sufficient fixture in their life that it is not realistic to imagine circumstances when P is away from their influence, it would potentially be legitimate to conclude that P is unable to make a decision whether to stay in contact with that person.See NCC v PB and TB  EWCOP 14 and also, by analogy, the decision of the Singapore Court of Appeal (applying a MCA identical in material regards to the MCA 2005) in Re BKR  SGCA 26. However, any argument made on this basis should spell out, precisely, how the impairment and the interpersonal influence interact to cause the functional inability.
- There is no official guidance on how to do this. Our typology provides some indication of how these arguments have been submitted in court judgments. As this is early-stage research, we suggest that it is most helpful in terms of giving conceptual clarity. We have identified the following factors which it may be useful to explore when determining whether the real problem is the person’s impairment or the influence of an other (or others):
- P being unable to preserve their independence or free will due to influence
- P having had their perspective and future thinking restricted by the influence
- P being suggestible to the influence of others in a general sense
- P being vulnerable because they are extremely dependent on that specific relationship
- P rejecting facts about the alleged influencer that are relevant to the risk of them taking that decision, such as a previous conviction for sexual assault
- If your conclusion is that the person lacks capacity to make the decision in question, and you propose to take steps in the name of their best interests, it is particularly important to ask yourself whether those steps are designed to secure the person’s autonomy. It would be ethically wrong to use a more expansive approach to the causative nexus to make life easier for professionals.See for more on the ethical underpinning of the issues here, the book by Camillia Kong and Alex Ruck Keene, Overcoming Challenges in the Mental Capacity Act 2005: Practical Guidance for Working with … Continue reading
- If your conclusion is that the person has capacity to make the decision in question, you cannot make a decision in the P’s best interests under the MCA. You may still provide support, but on the basis that you are engaging with a person who has capacity to accept or refuse that support. If you remain concerned that the person remains subject to interpersonal influence which puts them at undue risk, it may be necessary to consider taking steps under the inherent jurisdiction of the High Court. The inherent jurisdiction is outside the scope of this guidance, but is explained in this guidance note here.
|↑1||QJ v A Local Authority & Anor  EWCOP 7.|
|↑2||See AMDC v AG & Anor  EWCOP 58 at para 28(h) per Poole J, talking about a report to the Court of Protection, but equally relevant to any other report, including for purposes of e.g. DoLS.|
|↑3||See Re FX  EWCOP 36.|
|↑4||Wandsworth Clinical Commissioning Group v IA  EWCOP 990.|
|↑5||See, for instance, Re SA  EWCA Civ 128.|
|↑6||A good example of such a case is Kings College NHS Foundation Trust v C and V  EWCOP 80.|
|↑7||In Arskaya v Ukraine  ECHR 1235, the European Court of Human Rights found a breach of the Article 2 ECHR operational duty where the doctors took refusal of life-saving treatment where “despite S. showing symptoms of a mental disorder, the doctors took those refusals at face value without putting in question S.’s capacity to take rational decisions concerning his treatment. Notably, if S. had agreed to undergo the treatment, the outcome might have been different.” (para 87).|
|↑8||See PC and NC v City of York Council  EWCA Civ 478 at paragraphs 53 and 54 and Kings College NHS Foundation Trust v C  EWCOP 18 at paragraph 29.|
|↑9||A, B and C v X and Z  EWHC 2400 (COP|
|↑10||A, B and C v X and Z  EWHC 2400 (COP) at paragraph 37.|
|↑11||See Cheshire West And Chester Council v PWK  EWCOP 57.|
|↑12||See Royal Borough of Greenwich v CDM  EWCOP 32 (‘macro’ decision about the management of diabetes in the context of rapidly fluctuating capacity to take all the many ‘micro’ decisions that might be required to bring about effective management of the condition).|
|↑13||A Local Authority v AW  EWCOP 24.|
|↑14||And, as research carried out by another member of the MHJ project has shown, that there are still underlying debates about the point at which “support” should be seen as shading into “undue influence.”|
|↑15||For discussion about supporting decision-making generally, see the main guidance document.|
|↑16||For an example from the courtroom setting, see London Borough of Brent v NB  EWCOP 34.|
|↑17||See NCC v PB and TB  EWCOP 14 and also, by analogy, the decision of the Singapore Court of Appeal (applying a MCA identical in material regards to the MCA 2005) in Re BKR  SGCA 26.|
|↑18||See for more on the ethical underpinning of the issues here, the book by Camillia Kong and Alex Ruck Keene, Overcoming Challenges in the Mental Capacity Act 2005: Practical Guidance for Working with Complex Issues (Jessica Kingsley Publishers, 2018).|