In the third part of our series on the MCA Code of Practice consultation, we look at executive functioning impairment and fluctuating capacity.
Executive functioning impairment
The proposed new Code of Practice briefly recognises the matter of executive functioning impairment, which is perhaps an under-discussed and under-recognised matter surrounding cognition.
Executive functioning impairment is when an individual affected by brain injury may have an apparent dissociation between what they say and what they do. They may be able to coherently voice their rationale surrounding a specific decision, however, their actions do not mirror this, being ‘unable to give effect to their decision’ (Chapter 4, page 54, point 4.38).
In the draft Code, we are directed that executive dysfunction for a specific decision can only be concluded with clear evidence that show this dissociation between voiced intent and their physical response. This is not a simple matter to assess, and really requires professional input and multiple assessments carried out over a period of time. If there is any dispute over an individual’s capacity for a complex decision based on this presentation then a Court of Protection case should be raised as a matter of good practice.
Significant case law in this area includes TB v KB and LH, which will certainly have informed this area.
In contrast to executive functioning impairment, fluctuating capacity is a much easier matter to assess and plan for accordingly. Fluctuating capacity refers to an individual’s ability to make a decision which may fluctuate (change) over time on account of their condition. This means that at some points, they will have capacity for a specific decision at a specific time, and at other points, they will not.
Examples may include individuals affected by bi-polar disorder, or those suffering vascular dementia, where they may exhibit ‘sun downing’ type behaviours, becoming disorientated and distressed typically during evening-night time periods. Fluctuating capacity may also be caused by a relatively short term condition such as a UTI.
The draft Code of Practice documents presently direct the user to consider the individual and their circumstances in context, emphasising person-centred support.
If fluctuating capacity is an isolated presentation and the decision can be delayed, then the Code recommends postponing any related decision. However, if it is a regular pattern of transition in cognitive function, we are advised that discussions should occur with the individual during times of Mental Capacity functioning, to plan collaboratively what they wish for times of reduced or lack of Mental Capacity for a specific decision(s). All of which should be done while upholding the five core principles, in particular those of supported capacity and least restrictive options.
Another important area for professionals to consider is the case of undue influence. This refers to the intentional guiding of decision-making, whether or not it is ‘well intentioned’ to a specific outcome. This may be by a member of family, a friend, or even by ourselves as professionals if we use leading questions.
As professionals, we need to be aware of the danger of undue influence in whatever form it may take. We have a duty of care to support the individual to have autonomy, making decisions for themselves, with support. Assessments should always occur in a location away from influence, supporting the individual’s privacy and dignity while also avoiding coercion.
The draft Code recognises that sometimes this can be difficult to determine. In the case where an individual is being assessed for a specific decision under the Act, where it is demonstrated that they have an impairment or disturbance of cognition that directly impacts their decision-making, they will be concluded as lacking capacity at that time. Meanwhile, if the individual’s ability to make a decision is not due to a recorded impairment or disturbance in their functioning, then they do not lack capacity. However, if the reason there are concerns around decision-making being influenced by another, then appropriate safeguarding procedures must be followed.
Throughout the draft Code of Practice, we are continually reminded of the importance of documentation, and the ever-present need to make note of context and rationale associated with any observations.
This is especially important with more complex cases such as those discussed here as this helps safeguard the individual in question, as well as ourselves. This brings to mind a useful piece of advice from my early days as a student: ‘if something isn’t written down then it hasn’t happened’.
Therefore I urge all colleagues to take this advice going forward. With increased focus on protecting individuals and their rights, and framing these protections in law, then every decision needs to be fully justified and recorded correctly in order to avoid potential consequences in law.