How does the law protect people with dementia?

Coodes Solicitors Amy Quinn reflects on how the law protects people living with dementia and explains the five principles outlined by the Mental Capacity Act 2005.

1. Presumption of capacity

Capacity means someone’s ability to do something. In a legal context, it refers to a person’s ability to perform a specific act such as making a Will, which may have consequences for them or other people. The starting point should always be the presumption that every adult can make decisions for themselves – for example, about their own medical treatment or how to spend their money – unless there is evidence to the contrary. For most people with dementia mental incapacity is not a constant and it fluctuates with good and bad days. It also varies according to what is being asked.

2. Enable people to make their own decisions

All practical steps must be taken to help a person with dementia make the decision for themselves including explaining in a way that the person is most likely to understand. The Mental Capacity Act supports the concept that the essence of capacity surrounds understanding an explanation of information relevant to the decision to be made. For instance someone will have the capacity to decide if they would like to remain living at home but be unable to manage their own finances.

3. ‘Unwise’ or ‘eccentric’ decisions don’t mean a person lacks capacity

Using healthcare as an example, if the patient doesn’t accept the doctor’s advice and therefore makes what the doctor deems an unwise decision it should not be automatically assumed that the patient lacks capacity. Many court judgments have supported the principle that any patient has the right to refuse treatment as long as they have been properly informed of the implications.

4. If a person does lack capacity to make a decision a decision must be made on that person’s behalf using the ‘best interest’ principles

The Mental Capacity Act sets out ‘best interest principles’, to help make the best decision on behalf of the person:

• Ask – Is the person just having a bad day or are they likely to regain capacity?
• Avoid stereotyping or discrimination
• Involve the person in the decision making
• consider the person’s past present wishes and views
• What are the views of those who care about the person
• what is the least restrictive option

5. The least restrictive option must be sought to meet the need

Our laws are intended to keep interference by others to a minimum. They are focused on protecting the basic human rights of everyone – including vulnerable people. These rights include:

• Freedom to text, phone, email or write
• Right to choose friends
• Access to fresh air and exercise
• Privacy for visits
• Privacy in washing and toilet
• Freedom from intrusion into private life

For further advice and assistance on any of these issues, please contact Amy Quinn at Coodes by emailing amy.quinn@coodes.co.uk or calling 01736 362294.