Five reasons why someone who lacks capacity may be able to make some decisions for themselves

Many people assume that if someone lacks capacity they are unable to make any decisions about important aspects of their life. Rebecca Moore, Associate in Coodes’ Mental Health and Community Care team gives five reasons why that is often not the case.

We often hear similar words from clients who are supporting a loved one who has been found to lack capacity. “Mum has dementia, so she can’t make any decisions for herself,” is a common response following a mental capacity assessment.

In fact, we all make thousands of decisions every day – most of which we don’t even notice. From what we eat and the clothes we wear to how to look after our money and who to spend our time with, we are constantly making choices.

It is therefore quite rare for someone to be incapable of making any decisions. Just because someone lacks capacity, it is important not to automatically label them as being unable to take responsibility for any areas of their life.

The key principles of the Mental Capacity Act should underline the support given to anyone who lacks capacity. This legislation is built around the ethos of empowering people to make decisions by any reasonable means and assuming someone has capacity unless it is proved otherwise.

Here are some of the reasons why an individual who lacks capacity may be able to make some decisions for themselves.

1. Mental capacity is fluid and often temporary

Mental capacity is fluid rather than fixed. For example, people living with dementia are generally more able to make decisions at some times than others. That may mean, that the attorney in an LPA has to step in to make decisions on some occasions, but not others.

Lack of mental capacity can also be temporary. We often also see a loss of capacity in older people as a result of a UTI, for instance. This entirely treatable condition can bring on temporary confusion and a change in behaviour. Similarly, someone may once again become capable of taking responsibility for themselves after being treated for drug or alcohol addiction or overcoming a mental illness.

A mental capacity assessment is decision and time specific. It provides a snapshot of someone’s capacity at a particular moment. It is important to remember that if someone is found to lack capacity to make a decision this may not be permanent.

2. Many decisions can wait

When dealing with someone who has been found to lack capacity it is important to ask yourself if the decision really needs to be made there and then. Can it wait until a later date? The key is to take all reasonable steps for the individual to be able to make the decision themselves. Postponing a decision may therefore be the best option.

While this will not be appropriate in the case of urgent medical care, for example, it may be perfectly feasible when considering which care home someone should move into. Being patient and giving the individual time may empower them to make the decision for themselves.

3. They may be able to take responsibility for other aspects of their life

Clients sometimes tell me that, because a loved one has dementia, they are not able to make any decisions. However, most people are capable of making some decisions. For example, someone may struggle to manage their money but may be more than capable of choosing what to eat, who to spend time with and where they want to live.

A vulnerable adult with a learning disability may be found to be incapable of making a decision about having a particular relationship, for example. There may be concerns about their welfare in relation to this particular person. That does not mean they are therefore incapable of making any decision about who they spend time with.

If someone is found to lack mental capacity at an assessment, it simply means that at that point in time they did not have capacity to make one particular decision. It does not mean they are no longer able to make any decisions for themselves.

4. An individual who lacks capacity may need information to be presented differently

We all process information differently. Some people are better able to absorb details that are presented visually, for example, rather than in words. Choosing which care home to live in is a really big decision and that person may well want to visit the homes before stating their preference. Other people may find it easier to understand something that is shared with them with a series of photographs, rather than words.

The individual may also just need more time to come to a conclusion. This may be because that individual takes longer than average to process information. Or it may simply be because it is a major life choice that cannot be rushed.

5. Making an ‘unwise’ decision does not mean someone lacks capacity

The Mental Capacity Act states that someone should not be assumed to lack capacity just because their decisions seem ‘unwise’ to other people. For example, someone may say they want to live in their own home instead of a care home, even though they know they could have a fall. In this case, they may be prepared to take that risk because they know they would be happier living at home.

The key thing is that the individual can rationalise the decision. However, this can be a difficult area where vulnerable people are concerned. It comes down to finding a balance between their safety and autonomy and in some cases the Court of Protection may need to get involved.

Fundamentally, the Mental Capacity Act states that we should always assume that someone has capacity unless proved otherwise. It also sets out that, if someone lacks capacity, we should do what we can to empower them to make that decision.

For advice on this issue, contact Rebecca Moore in Coodes Solicitors’ Mental Health and Community Care team on Rebecca.moore@coodes.co.uk.