Executive functioning

1. 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.”[1]A Local Authority v AW [2020] EWCOP 24.
2. 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.

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