Young people are protected by the MCA from the age of 16, though until they are 18 there is an overlap with the framework of the Children Act. This means that their parents can in some circumstances consent to treatment on their behalf, but the MCA must always be considered where relevant.
For more on the care and treatment of young people aged 16 and 17 who might lack mental capacity for decisions that need making, take legal advice and, for more information, see Young People of 16 and 17 (click here), and MCA Code of Practice, Chapter 12.
When should specialist help be involved in assessments of capacity?
Sometimes it can be very difficult to assess someone’s capacity without specialist help. Specialists in certain disorders or brain injuries are sometimes needed to support the capacity assessments needed for care planning.
‘Executive dysfunction’ is often associated with acquired brain injury, some mental disorders or neurological conditions such as Huntington’s Disease. We can think of this as a person who can ‘talk the talk but not walk the walk.’ It shows itself when a person understands information and accurately repeats it back; they also seem able to use or weigh it, to make the necessary decision. But they cannot seem to carry through this decision into action. For example, they agree to the dietary changes needed to improve their poor health, or to the need to tackle their hoarding, but then repeatedly fail to keep to those changes for even a short time.
Agencies and providers need to work together to build up a picture of what the person actually does, rather than what they might agree to do.
For more information on executive dysfunction and other complex areas of capacity assessment, see Mental Capacity Guidance.
When assessing the capacity of a young person, remember that their capacity for many decisions, such as road safety and how to manage social and sexual relationships is likely, in many cases, to be hugely enhanced by skilled and appropriate training and empowerment.
What should be recorded in a capacity assessment, and when?
A written record of capacity assessment is not needed to take day-to-day decisions about consent to care. It is enough for front-line workers that they are working in accordance with a care plan, as long as that care plan is revisited at reasonable intervals and is based on a dated, clear assessment of decision and time-specific capacity.
The bigger or more potentially life-changing the decision, the more detailed the capacity assessment record needs to be.
An assessment should be revisited whenever the care plan is reviewed, to check it is still relevant and its conclusions still justifiable and fair to the person.
Any capacity assessments should:
- Clearly describe which specific decision or series of linked decisions the person faces and cannot make
- Describe efforts made to enable the person to be able to decide these for themselves
- Give clear examples, for different decisions if relevant, of how the person cannot carry out at least one of the necessary steps (understand, retain, use and weigh to make a decision)
- Contain evidence that the ‘causal nexus’ has been thought about. This means recording why you think that the person’s inability to make the specific decision(s) is probably caused by an ‘impairment or disturbance’ in the mind or brain, which is given a diagnosis or at least described.