The Mental Capacity Act (2005) was designed to help protect the rights of some of society’s most vulnerable people. One of the most frequently overlooked elements of the Act is principle #3: the right to make what others may perceive to be an unwise decision.
A familiar character
To help us unpack some of the issues around this principle, I’d like to introduce you to a familiar character…
- Great Uncle Bulgaria is thought to be born around 1958, though his true age is not known. He lives with his family in Wimbledon Common.
- A very traditional man at heart, Great Uncle Bulgaria is known to his friends as something of an eccentric, with a well stated disdain for modern technology.
- As he has got older, Great Uncle Bulgaria has required some extra support due to some challenges with his physical mobility. As such, he walks with a stick and has a community carer to help him with personal care.
- In recent weeks, Great Uncle Bulgaria has experienced a number of falls. His care team have recommended some technological aids such as ‘fall mats’ to reduce risks, however, Great Uncle Bulgaria has politely but firmly declined.
- Following his most recent fall, the care team have suggested a Mental Capacity Assessment to ascertain whether Great Uncle Bulgaria is able to make the decision to reject further support to reduce the risk of falls.
The assessment took place mid-morning in the front room of his home at the Burrow. Only the assessor and Mr Bulgaria were present during the assessment. There were no distractions noted within the environment. Mr Bulgaria required no support for communication beyond clear verbal communication, with time to process and respond.
After introductions were made and the assessment procedure explained to him, the assessment proceeded as normal, to assess the decision to use (or not use) technology-based aids to reduce the risk of injury around the home.
Understanding: Mr Bulgaria understood his changing health, including increased falls, recognising associated risks if he is unable to stand or has an injury. Mr Bulgaria further understood and could freely discuss his views on technology, such as, but not limited to, fall mats and lifelines. He recognised their uses and their ‘pitfalls’.
Retention: Mr Bulgaria was able to freely recall information around his health-based circumstances, including the frequency of his falls and his increasing needs. Mr Bulgaria required minor information provided around specific types of technology, from which he was able to consider their uses, being able to retain this knowledge.
Weighing up: Mr Bulgaria proactively weighed up the risks and benefits of ‘technology’, including life lines and fall mats. Mr Bulgaria concluded that although they have advantages, that they are wasteful, invasive and did not cover all possible situations. Mr Bulgaria felt strongly that he would prefer to create a basic, more simpler alarm system of his own liking. Especially as he lives in a busy household where there are many others about.
Communication: Mr Bulgaria was able to communicate clearly and cohesively throughout the assessment, expressing his thoughts and feelings on this topic. No concerns were noted.
Reflections on the assessment
Does Great Uncle Bulgaria have capacity to decline a fall mat or lifeline? This is not a trick question by any means. As you can see from our assessment above, he has been able to demonstrate understanding, retention and the ability to weigh up his decision. He has communicated his thoughts and feelings on the matter very clearly. Therefore, the second diagnostic stage of the Mental Capacity Test is not required, as Great Uncle Bulgaria has capacity to make an informed decision.
It may be that Great Uncle Bulgaria’s decision does not fit with family expectations or our own views on what might be the best option to reduce risks and protect his health. However, under the third principle of the Mental Capacity Act, he has the right to decide freely, based upon his views, wishes, experiences and beliefs.
I would further add, that if he had been found to lack capacity, any decision should be made in Best Interest, taking account of what he would have wished if able, and seeking to find the least restrictive option in line with this to support.