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Assessing capacity around unfamiliar topics

Man with learning disability getting married

There are many elements of daily life that we don’t learn about until we reach certain stages of our lives or have greater levels of independence in our everyday lives. For example, on first moving away from a parents or caregivers home, a whole new world of experiences and responsibilities will suddenly occur. This can be anything from how to change a lightbulb or put up a shelf, to how to organise a loan or buy a car.

However, for vulnerable people, the transition to adult life can be vastly different. As Mental Capacity Assessors, it is our role to make sure we adhere closely to the key principles of the Mental Capacity Act and ensure that those people we assess are supported to make their own decisions wherever possible. This may mean providing higher levels of grading and adaptations to promote and enable capacity for those areas the individual may be unfamiliar with – especially if they have never encountered the decision before and so cannot be expected to make the decision without appropriate information and support.

Remembering the third principle

The Mental Capacity Act (2005) states that we must always presume capacity in the first instance, and support capacity wherever possible. This includes the sharing of all relevant information, and even education where a topic is new to the individual in question. This point is absolutely vital, for without education and information sharing, we are not promoting autonomy and are effectively restricting rights with unjust cause.

It is also important to remember the third principle of the Mental Capacity Act, which tells us that a person can make what others might call an ‘unwise decisions’, and does not mean they lack capacity. This can be especially difficult to deal with in cases where an individual may have fluctuating capacity or executive dysfunction. However, we must be clear: an individual cannot be judged to lack capacity just because the decision they are making is deemed to be unwise by others. It is not our role to judge the decision itself; rather it is our role to judge whether they are capable of making the decision. This distinction is very important.  

Young people and the transition to adulthood

Here at Mental Capacity Ltd, we can be asked to conduct Mental Capacity Assessments for young people as they transition into adulthood, especially around the management of property and other related affairs. The starting point for any such case is always to look at the background. This may include: What is their social context? Are they living at home, or with loved ones?

It is also important to establish whether they have experience paying rent and/or paying bills. If they don’t have any prior experience dealing with property-related finances (which many young people don’t), then this is not to say they are not able to make a decision around their property and other related affairs. Rather, this means that as Mental Capacity Assessors, we need to do some extra preparation in order to support decision-making.

In cases where some education may be required, then we would advise the decision be delayed if it is not urgent. However, if it is not possible to delay the decision then an initial assessment can be carried out, with the explicit understanding that the need for education must be met, and a new assessment completed as soon as possible

Other factors to consider

In all mental capacity assessments, due time and consideration should be given to consider both short term and long term factors, ensuring suitable, proportionate support is provided to enable this reflection and hypothetical application to the decision being explored.

In consideration of property and finance, we have seen cases where a young person may be due to receive a large amount of money through an inheritance or legal settlement. In some instances, their first response may be for the young person to want to spend the money all at once. To some, this may appear unwise, however, as we know, an ‘unwise’ decision does not necessarily mean a lack of capacity. Indeed, wanting to spend a large sum of money can be quite a natural response based on the knowledge and experiences they have at that time of their life.

It is important to remember, that just because they lack experience, doesn’t mean they are unable to make a decision.

Therefore, it is very important that we provide appropriate support to help the individual make an informed decision, while also taking due care to reflect upon the third principle of the MCA. All the while remembering that it is not our job to judge their decision, but rather to assess their capacity to make a specific decision at a specific time.

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