What is the presumption of capacity?
We need to understand what is meant by the presumption of capacity, and how to use it in practice.
The MCA is clear everyone is presumed to have capacity to make their own decisions unless it can be shown that they lack ‘decision and time specific capacity.’ ‘Capacity’ means the ability, with all the information required, to make a particular decision at the time it needs to be made.
There should only be a capacity assessment when there is doubt about whether a person can make a specific decision at the time it needs to be made. An assessment of capacity is only needed when there has been reason to have doubts about a person’s capacity. Reasons might include concerns by relatives or friends about a person’s unwise decision-making, or evidence of significant worsening of short-term memory.
Nobody should ever write ‘Mrs X failed to convince me of her capacity to make this decision’. The burden of proof is on the person who would take action, in the best interests of the person who lacks capacity, to prove that they can’t do it themselves.
When do we need to question the presumption of capacity?
Sometimes it is clear that a person lacks capacity for many decisions, for example, because of profound and multiple learning disabilities, or advanced dementia combined with a loss of the ability to communicate.
At other times, doubt is righty raised about a person’s capacity to make a specific decision, or series of linked decisions, at the time they need to do this. Someone might be able to make some of their own decisions some of the time, but we see that their capacity fluctuates. Perhaps they are less able to make complex decisions when they are tired, ill or stressed. Possibly a person may be convinced that they can go on living independently and safely but there is significant evidence that they cannot do so.
We now recognise that some people can sound very committed to acting in a certain way – for example, to stop impulsive over-eating between meals, or to stop being influenced by an acquaintance who always asks for money – but they then repeatedly fail to carry the decision through into action. This is known as ‘executive dysfunction’ and may be the result of a brain injury or neurological disorder, typically affecting the frontal areas of the brain.
If such doubts arise, and a person may be at risk from their apparently unwise decision-making, it is right to assess someone’s capacity. This must always be with regard to a decision, or series of decisions, the person is facing. However, it is never right to assess everyone’s capacity automatically simply because they receive health or care services, are elderly, or have a certain diagnosis. In the same way, the presumption of capacity means it is never right to ask people to prove that they do have capacity for a decision; it’s always up to the person who needs to take action, if they do lack capacity, to show that, on the balance of probabilities, the person cannot make this decision for themselves at the time it needs to be made.
How should we create a care plan with someone who has capacity?
Find out all you can about the person and their wishes. Explore how they like to be addressed, whether they are gregarious or private, and how they feel about being a recipient of care services. Invite them to share, if they wish, what is important to them, whether because of their personal history, their culture, their interests or their beliefs.
Explain the ‘house rules’, ensuring that these are fair and not discriminatory. They can reasonably cover aspects of communal living based on consideration for the rights of others.
When someone has capacity to make their own decisions about how to live, any limitations placed on their rights under the Human Rights Act Article 5 and Article 8 must be necessary and proportionate. An example in a communal living setting would be to ask the person to respect the rights of others to a peaceful night by not playing loud music within certain agreed hours or to let staff know if they are not going to be in for meals.
What should be recorded, and how?
Record a pen picture of the person, their wishes and what is important to them, and the ways their wishes will be carried out in the care plan.
There are times when a diagnosis gives pointers to the kind of decisions someone is likely to have difficulty making, but do not include a global assessment of their capacity. The MCA rests on the ‘presumption of capacity’: this principal is ‘rebuttable’, of course, if there are reasons to think that someone might lack capacity for a specific decision or series of linked decisions. Nobody has to prove that they have capacity. The onus is on someone who intends to act or make a decision, for or about someone who lacks capacity, to prove the person lacks capacity to consent to that action or make that decision. This means you need to be clear what decision the person is facing, and record why you think this person cannot make this decision at the time it needs to be made.
Record any future care planning the person has already put in place, such as Advance Decisions to Refuse Treatment, (ADRTs) or Lasting Powers of Attorney (LPAs), whether for their financial and property affairs, or health and welfare decision-making. Note when and how you have notified other involved professionals, such as social workers or doctors, of relevant legally binding plans created by the person. Ensure these records will be seen, understood and acted on by locums or new staff when relevant.
Record any non-binding ‘advance statements of wishes’: these are not legally binding but should be honoured as the basis of future decision-making by others if the person should lose capacity, in the future, for these specific decisions.
Record all discussions with the person about these subjects, together with a note of resources you have pointed them towards to enable them to carry out their own advance planning. Remember a person with capacity can change their mind: always allow them to re-think their earlier decisions if they want to.