Decisions, Decisions! Mental Capacity Matters

Most of our decisions are made in the blink of an eye and are guided by habitual, contextual, sequential, and regulatory logic. Rarely do we find ourselves in the very uncomfortable position of being unable to make a decision, but this is a contingency for which we should be prepared, as our quality of life may very well depend upon such preparation.

Imagine yourself experiencing a medical condition that prevented you from making decisions regarding your life and medical care, or indeed from doing anything for yourself at all. Our ability, as adults, to make decisions for ourselves in daily life is one of those fundamentally important freedoms, something that we tend to take so much for granted that it would only be missed in its absence. Sadly, some circumstances can deprive us of this freedom. Brain damage caused by a stroke or accident is one example. Others mentioned by The Office of the Public Guardian are: “dementia or other mental health problems”, “learning disability”,” substance misuse”, and or “confusion, drowsiness or unconsciousness” stemming from an illness or the medication for one. Onset of incapacity can be sudden.

With the passage of the 2005 Mental Capacity Act into law on October 21, 2007 The Office of the Public Guardian was established with a remit to protect people who lack mental capacity from abuse.  As abuse was already illegal , this Act can be seen as a clarification of the rules and a tightening of state control over matters previously decided by next-of-kin and care workers on a case by case basis.

According to booklet OPG602 (see below for OPG links), “A Guide for family, friends and other unpaid carers”, in order to satisfy the legal definition of mental incapacity a person is not able to do one or more of the following things at the time when a decision needs to be made: “understand information given to them”, “retain that information long enough to be able to make a decision”, “weigh up the information available to make a decision” and “communicate their decision.”  As the complexity of information and the clarity of its delivery have a direct bearing upon this, it is clear that a person could have capacity to decide some matters and not others. As patients have “up” days and “down” days, it is quite possible that they might have incapacity to make a decision on one day and capacity to make the same decision on another, so the issue of when the question is asked is important. There’s no point asking someone a question if they’re snoring loudly, clearly it should be asked when a patient is perceived to be most alert and compos mentis.

Furthermore, before it can be established that a person doesn’t have capacity, there is legal requirement that patients “should be given all the help and support they need to make a decision before anyone concludes that they cannot make their own decision.” This includes making “an effort to provide all the necessary information in a way the person can understand” and then making “it easy for them to try and explain what their preferences are.”

Capacity obviously depends upon the comprehensibility of the information required to be understood in order to make a decision. By this definition many of us don’t have the capacity to program our home electronics.

There is plenty of leeway for safety, under the terms of the Act, all adults are assumed to have capacity to make their own decisions unless it “can be shown that they are unable to make them”; furthermore, people need to be able to show that actions they take on behalf of others were in the patient’s best interests.

The best aspects of this Act, as far as I can see, are that it allows latitude for fluctuating capacity and good sense to prevail, encourages consideration of the patient’s best interests and last but not least, gives us clear guidelines about the creation of Lasting Powers of Attorney regarding Welfare, and Property and Affairs, thus encouraging us to protect our loved ones from involvements with the Office of the Public Guardian and Court of Protection in the event of us losing our capacity.

Capacity issues can be so complex that there is a danger of repelling the very people that patients wanted to have most contact with before they lost capacity to express their wishes, especially if they are elderly and distressed.  Therefore I urge everyone, while still healthy, to go to their solicitor and:

  1. have lasting Powers of Attorney drawn up, they should be as comprehensive and detailed as possible in the expression of your known wishes
  2. empower your chosen attorneys to write in additional discretionary powers to allow for unforeseen contingencies.

If you don’t yet have a solicitor in mind, our family has found Trevor Price of Arnison and Co in Penrith to be helpful and efficient in this regard.

Freedom of choice and mental capacity are inextricably connected. In the UK, you have the right to eat your cereal off a dinner plate or to boil your breakfast egg in a bowler hat if you choose to. You don’t have the right to turn a vehicle without signaling, to interfere with oncoming traffic, or to drive in the wrong lane. Nor do you have the right to make choices for other people aged over 16 now (since 2007), if they have the mental capacity to make such decisions for themselves. Parents of rebellious teenagers take note!

You can obtain forms and guidance from the Office Of The public Guardian on:


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