When should the Mental Capacity Act be used to make decisions on behalf of vulnerable people? Mike Ward unpicks a complicated issue.
In my June article (DDN, June, page 23) I highlighted how the UK’s Mental Health Act poses problems when managing high-impact and change-resistant dependent drinkers. However, the piece of legislation which more commonly causes problems is the Mental Capacity Act (2005).
Let’s start with a real-life case.
Joe is a 55-year-old man who is chronically dependent on alcohol. He lives in a small housing association flat. His drinking is a problem, but the real concern is that drinking ‘friends’ are entering his flat and causing a nuisance. This causes worry to neighbours and landlords. In addition, Joe appears to be giving them money, alcohol and even his belongings. He has been warned about allowing these people into his flat, and he has spoken in his more sober moments about his desire and intention to stop it happening. However, nothing has changed, and the landlords are serving him with eviction notices.
The Mental Capacity Act’s primary purpose is to provide a legal framework for professionals acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves. For example, can a paramedic take a resistant patient to hospital for treatment? Can a social worker manage the finances of someone with a learning difficulty?
The act is decision-specific: it does not enable professionals to make a general statement that someone lacks capacity (although this often happens). It only allows the worker to say that a person lacks the capacity to make this particular decision at this point in time. If an adult can be assessed as lacking the capacity to make a particular decision, professionals can take appropriate action in the best interests of the individual.
The act does apply to people with alcohol and drug problems; a person can be assessed as lacking capacity because of intoxication. However, the act suggests that if someone is likely to regain capacity in the near future, ie become more sober, then the capacity assessment should wait until that point, if possible. Herein lie the problems.
Alcohol Research UK has analysed 11 Safeguarding Adult Reviews published in 2017 which related to the deaths of people either with chronic alcohol problems or alcohol use surrounding their death. These reviews suggest that the understanding of the act is poor in general. However, more specific problems exist in relation to people with alcohol misuse.
For example, a review from Waltham Forest highlights that: ‘The Mental Capacity Act advises you need to wait until a person is sober before you think about capacity. However, when a person is a chronic alcohol user it could be argued that they are never sober. More so that their ability to reason about whether they want to stop drinking is significantly impaired due to the addictive nature of their alcohol use. Therefore, is someone who is a chronic alcohol user ever in a space where their addiction is not impacting on their ability to reason?’
A review from Newcastle highlights that workers’ attitudes can also impede capacity decisions: ‘agencies… see Lee as more troublesome than troubled, a nuisance offender, an abuser of alcohol and drugs who chose a lifestyle that laid him open to risk. The fact that he did not have the mental capacity to make such choices was not recognised by some of the professionals who had contact with him.’
The biggest problem is that people like Joe continually move in and out of capacity due to their repeated intoxication: they have ‘fluctuating capacity’. A more sober Joe will demonstrate that he understands the problem of allowing people to come into his property and wants to do something about it. Four hours later he will be drunk again and will do none of the things that he has discussed. Does he have the capacity to manage his property and prevent the potentially abusive behaviour of his ‘friends’?
This is not merely an interesting legal debate – for people like Joe this can be a matter of life and death. The most crucial example of this is the review of the death of ‘Carol’, who was beaten to death by two teenage girls in Teesside. They were among a number of people who were regularly exploiting Carol’s vulnerability and using her property through coercion.
The review into her death suggests that it is important to assess both decisional and executive capacity. This concept has been proposed by Braye, Orr and Preston-Shoot (2011).
A person has decisional capacity when they can understand, retain, use and weigh up the information needed to make a decision. This is covered by the Mental Capacity Assessment outlined in the act. However, executive capacity is the ability for a person to actually carry out that decision, which can be impaired by alcohol misuse.
For an individual such as Carol or Joe, the assessment of executive capacity is unlikely to be straightforward. When more sober they may appear able to take rational decisions, but repeated history shows they are never able to put these decisions into effect. Do they have the executive capacity to manage situations, for example where unwanted people are entering their property?
In part, the problems highlighted here are about training and understanding. Every local authority area in the country should be bringing professionals together to ensure a shared understanding of how the act applies to people with alcohol and drug problems. However, the notion of executive capacity is not mentioned in the act. There is a need to consider new guidance on the act, or even revised legislation, if we are going to protect some of the most vulnerable people in our communities.
Mike Ward is senior consultant for the charity formed by the merger of Alcohol Concern and Alcohol Research UK, www.alcoholresearchuk.org. His next article will look at criminal behaviour orders.