Mental capacity – what does it really mean?
When someone has lost their mental capacity, what does that mean? With the Mental Capacity Act 2005, capacity is considered to be time and decision specific, but what does that mean? Every decision that is made is made at a certain time, it might even be made each day at the same time, such as eating breakfast or getting out of bed, but each decision is made every day and tomorrow the decision to have breakfast is a new decision. Capacity can be fluctuating, so if someone is very unwell today, they might not be tomorrow and their capacity can return. This is why decisions are time specific.
What about decision specific? Some decisions are much more complicated than others, such as the decision to move house, but a decision about what to eat for dinner is much easier, so someone with poor cognition may not be able to make one decision, but might be able to make another.
The statutory test of capacity at stage 2 of the decision making process is about understanding it, weighing it up, retaining it and communicating the decision. So how does someone weigh up the decision? The easy answer to that, is to ask them.
What isn’t part of assessing someone’s capacity is the “nice answer” or the “risk free answer”. So whether someone with a cognitive impairment can decide to live with a relative or not, should not depend on whether the arrangement would work well or would be good for one of more of the parties. Or just nice to see happen! Ask them if they understand the proposition, look at the different aspects of it, how would an “average person” analyse the situation, unless you know they have skills in the area greater than an average person, then that’s the criteria to assess them by.
When deciding if someone has capacity to eat dinner, an average person would be unlikely to know how many grams of saturated fat they have eaten today, or how many calories. An average person knows they are hungry and what they might fancy eating and that it’s approximately dinner time. There is no reason to make the decision more complicated than it needs to be.
One of the key aspects of the Mental Capacity Act is the presumption of capacity, that someone is considered to be able to make a decision until it is proven that they can’t. Capacity is often a balancing act and it is only when someone is in a coma or other minimally aware state that there is a total lack of capacity, even people so impaired that they are non verbal can refuse to eat or drink or have care undertaken. And they might refuse to eat their meal, but agree to eat their pudding or sweets, because they know the difference and have a preference.
The ideas behind the Mental Capacity Act were about enabling and empowering people to make as many decisions that they can for themselves.