When a person is suspected of self-neglecting and/ or hoarding this behaviour may pose a serious risk to their health and safety.
The Mental Capacity Act 2005 provides a framework to guide practitioners and to inform any decisions made about when and how to intervene with an individual who may lack mental capacity. Any decision made and actions taken must be clearly documented in the relevant records, e.g., Patient records, social care records, housing records etc. Any decision to intervene in the individual’s best interests may need to be in line with following up through safeguarding adults’ procedures.
The Mental Capacity Act 2005 provides a statutory framework that applies to people aged 16 years and over. Practitioners are required to adhere to the following principles of the Act:
• A person must be assumed to have capacity unless it is established that he or she lack capacity.
• A person is not to be treated as unable to make a decision unless all practical steps to help him or her to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because he or she makes a decision that others believe to be an unwise decision.
• All decision and actions must be in the person’s best interests.
• Before any action is taken, or a decision is made, consideration must be given to whether the purpose for which it is needed can be as effectively achieved in a way that is less invasive or restrictive of the person’s rights and freedom of action
An individual is deemed to lack mental capacity when they are unable to demonstrate at least one of the following four functions to make a time-specific decision, which may be caused by an impairment and/or disturbance of the mind or brain:
1. Understand the information relevant to the decision.
2. Retain the information.
3. Use that information as a part of the process of making the decision.
4. Communicate his/her decision either by talking, signing, or any other means.
Fluctuating capacity is not a concept expressly addressed or provided for in the MCA 2005, although it is referred to in the Code of Practice. It is important to distinguish between two different potential situations:
1. A person with genuinely fluctuating capacity, such as a person with a severe mental health disorder whose condition may lessen or become more severe over time. This fluctuation can take place either over a matter of days or weeks, or over the course of each day. There are many, especially elderly individuals, whose cognitive abilities are significantly less impaired at the start of the day than they are towards the end. This can also apply to an individual who consumes a significant amount of drugs and alcohol.
2. A person who has a temporary impairment of their ability to make decisions. A very clear example would be a person suffering from a severe urinary tract infection and in consequence of the infection is suffering from confusion and/or delirium.
Best Interest All decisions and actions taken on behalf of a person who lacks mental capacity must be taken in the reasonable belief that they are in the person’s best interests. The following principles must be followed to determine a best interest’s decision:
• All decisions must be made in the person’s best interests
• Involve the person who may lack mental capacity in the decision-making process and offer all practical support to assist in the decision-making process.
• Consult with the person and others who are involved in his or her care.
• Be aware of, and take into account the person’s past and present wishes.
• Do not make assumptions based on the person’s appearance, age, condition, culture or behaviour
• Decisions must be fair and not in any way discriminatory.
• Consider if the person is likely to gain the mental capacity to make the decisions in the future. For example, is the person suffering from a urinary tract infection and is this impacting on their ability to make decisions?
• Consider the least restrictive options available.
• Any decision made must be recorded/documented and shared when it is relevant proportionate and necessary. A lack of mental capacity could be due to (but not limited to):
• a stroke or brain injury
• a mental health issue
• dementia
• a learning disability
• a physical illness
• confusion, drowsiness, or unconsciousness because of an illness of the treatment for it
• substance misuse.
Key Principles – Mental Capacity
Further information
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