- 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||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.”|
|↑2||For discussion about supporting decision-making generally, see the main guidance document.|
|↑3||For an example from the courtroom setting, see London Borough of Brent v NB  EWCOP 34.|
|↑4||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.|
|↑5||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).|