We recently had the privilege to attend a stimulating event exploring the role of executive dysfunction and mental capacity. The afternoon was hosted by CoPPA North West and Pennine Care NHS Foundation and featured speakers from across the legal and medical professions, including Judge Simon Burrows, Barristers Rebecca Clark and Neil Allen, and Consultant Psychiatrists Dr Cathy Symonds, Dr Ade Akinola and Dr Samuel Wintrip.
In this blog, we will reflect on some of the learning from the day, and some thoughts about the way we think about executive dysfunction in terms of the Mental Capacity Act.
What is executive function and dysfunction?
Executive function can be summarised as a ‘cognitive process of flexible thinking, working memory and inhibition involving frontal, temporal and parental lobes’. Deficits in this function are a normal part of human experience, for example a moment of impulsive decision made without extrapolation of risks and benefits nor planning. But it is when there are frequent and prolonged deficits that this moves to dysfunction as a form of impairment. Crucially, executive dysfunction is not a standalone disorder, but rather a symptom of another condition.
Assessing executive dysfunction
When making decisions, we draw upon both cognitive and physiological realms of executive function, and often require a form of inference of information from multiple sources. As such, executive dysfunction does not sit in isolation. It is therefore essential to demonstrate the level of dysfunction within what could be described as a ‘spectrum of impact’.
For this reason, demonstrating executive dysfunction can be a longitudinal practice. The time-frame of assessment will vary based on the individual.
Legal aspects of executive dysfunction
Reports need to be professionally detailed, yet succinct, with clear focus and consideration of how comments apply in the ‘real world’. It is especially important that professionals give due care and attention to ensure that capacity is supported throughout the process.
The assessor should clearly identify any discrepancies that could indicate an executive dysfunction through a disconnect between the practical decision making within a safe environment and functional application in the every day.
Relevant case law
Numerous examples of case law were referred to across the day. These included:
- A local authority v H (2023) EWCOP4
- A local authority v A (2020) EWCOP24
- JB v a local authority (2021) UKSC52
- Cheshire West v PWK (2019) EWCOP57
- AMDC v AG and Anor (2020) EWCOP58
- Heart of England NHS Trust v JB (2014) EWHC342
- B v a local authority (2019) EWCA Civ 913
- Tower Hamlets v PB (2020) EWCOP 34
- Warrington v Y (2023) EWCOP27
- A local authority v RS (2020) EWCOP 29
- PC and NC v City of York (2013) EWCA Civ 478
From all of these cases, several key themes emerge. These include the need to support capacity at every stage, and demonstrate evidence in a clear and succinct manner.
In cases where executive dysfunction may be present, it is essential that the assessor incorporate observations and evidence of the dysfunction in the everyday activities/functioning of P. It thus becomes very much a ‘3D’ assessment (Neil Allen).
Remember: it is the responsibility of the assessor to determine the ‘threshold of capacity’. This threshold must not be set too high, as it relies on the ‘balance of probabilities’. It is often much lower than many people may think.
Find out more
For more information about mental capacity; or for support with mental capacity assessments, including training and consultancy, please get in touch.