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Every day we make hundreds of decisions and most of the time we don’t even notice we’re doing it. If we are hot, we open the window… if we are hungry, we have something to eat… if we don’t like what we are wearing, we change out clothes. Much of our day is taken up with decisions to do one thing or another. Often, it doesn’t matter whether we choose one option or another but sometimes decisions are more significant and we do notice them because they take a little while to think about. Planning the week’s meals, where we live, what we are going to spend our money on or whether to have a particular medical procedure are just some decisions that we have to make that take a little more thought. So, what is mental capacity? Quite simply, mental capacity is the ability to make decisions however small or large. But what happens if someone can’t make decisions because of an illness or accident that has resulted in a brain injury? What happens if a person doesn’t have the mental capacity to make certain decisions?
Most people can make some, if not all the decisions they need to. It may not be the same decision as we would make but that’s OK, everyone is free to reach their own conclusions and decide between one option and another. It’s how we learn sometimes isn’t it? Making decisions and deciding that we will definitely repeat it or perhaps deciding that we will never do it again! We make decisions by weighing up the pros and cons and deciding whether one option outweighs the other. For instance, when deciding where to live, we might consider what the area is like to live in, what local amenities there are, access to public transport if we can’t drive, the availability of parking if we can or how far it is from our friends and family. But what happens if we have an illness or brain injury that affects our ability to make decisions? Should people be left to make decisions anyway? Should someone make decisions for them to protect them from harm? Who would make these decisions? How much help with decision making is too much of an interference?
If a person appears unable to make decisions, whatever the decision, there are certain things that can be done to help them. Since 2005 mental capacity law has existed in the form of the Mental Capacity Act. The Mental Capacity Act provides a framework for assessing whether a person can make decisions but more importantly perhaps, it protects people’s autonomy and freedom. The Mental Capacity Act ensures that people are free to make their own decisions (however unwise they might seem) unless it can be proved (using a specific test) that they can’t make the decision. As you might imagine, a person might be able to make some decisions and not others. That’s another way the Mental Capacity Act protects people, from arbitrary decisions being made by someone else. If you claim that a person lacks the mental capacity to make a decision, you have to prove it for each decision you are making such claims.
For most decisions that involve property, finances, health and welfare, the test is the same and comes in two parts. First, there is an exploration of whether the person can understand, retain and weigh up the important information needed to make a decision. Not every single piece of information, just the important parts. So, for instance, if the decision is whether to take a particular medicine we might need to know what the medicine is, what the side effects are, the benefits of taking the medication and the consequences of not taking it. It’s unlikely that we would be too interested in clinical trials that led to the approval of the medication or who makes it. If a person can understand, retain and weigh up the important information and can communicate their decision then they have mental capacity to make the decision themselves and no-ne should interfere in their decision-making.
If however, a person can’t understand or retain or weigh up the information or can’t communicate their decision (either verbally or non-verbally) and the reason they can’t do any of these is because of disturbance or impairment of their mind or brain then they lack the mental capacity to make that particular decision. An impairment can be a condition that the person lives with such as dementia or a learning disability. Or it could be a temporary impairment resulting from drinking too much alcohol or the affects of drugs. If it’s a temporary impairment, then it’s a case of waiting until the person can make the decision themselves. If not, and the impairment is life-long or the decision is an immediate one (life saving treatment in hospital, for instance) then other people will be required to make decisions in the person’s best interests.
If a person has been tested and genuinely lacks capacity to make a decision then there are certain actions that can be taken to help them make the decision. Each of the actions have one thing in common, any decision that it made by another person has to be in the best interests of the person. That is usually what the person would choose to do themselves, unless of course it will cause them harm or is illegal. The person may have anticipated needing someone to make decisions for them in the future and appointed attorney (either a Lasting Power of Attorney or Enduring Power of Attorney). If the person has already lost the mental capacity to make decisions, the courts might appoint a Deputy who has a similar role to an attorney. If neither have been appointed, a care worker, health or social care professional might make a best interests decision for the person.
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