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Case study: Presumption of capacity in practice

Steam train travelling through woods

The first principle of the Mental Capacity Act (2005) states that we must always presume capacity in the first instance. This means that we should always start from a position where we presume that an individual has the ability to make a decision (i.e. has capacity), rather than the other way round.

However, while this may seem quite a simple principle, the reality can often be far more complex. In a recent conversation published on Mental Capacity Law and Policy, Barrister Alex Keene is joined by Isabel Astrachan and Dr Scott Kim to discuss a paper they have published on ways in which the MCA can be misunderstood.

The first issue the group identify is that presumption of capacity can in some cases lead to situations where assessments are avoided. While this may be done with the best of intentions, this can mean that both sides evade responsibility for a particular decision – and in so doing, cause harm to both sides.

Another issue is that presumption of capacity can potentially lead to a misuse of assessment that results in paternalistic control, and which opposes the core purpose of the legislation in promoting a person’s autonomous decision-making.

This raises the question: at what point do you ‘suspend’ the presumption of capacity in order to assess?

Case study

To help us examine the first principle of the MCA in more detail, I’d like to introduce a familiar fictional character, known as Sweep.

  • Sweep is 19 years old and lives in supported living with three peers.
  • Sweep has a diagnosis of Attention Deficit Hyperactive Disorder (ADHD) which is managed with medication. He also has Autism Spectrum Disorder (ASD) and Global Development Delay (GDD). 
  • He currently attends a local college three days a week. He also enjoys volunteering at the local steam railway once a week. Both of these activities require a support worker due the moderate-high risks identified when he has a focused purpose that reduces his awareness of the risks and hazards around him. This risk is greatest when he is travelling.

In this scenario, Sweep has requested that he travel to the steam railway on his own (independently).

When to assess capacity

In this case, there are arguably two decisions to be considered:

  1. Decision to attend his volunteer role at the steam railway independently.
  2. Decision to travel independently to the steam railway.

Decision #1

The support work team have spent a great deal of time discussing this goal with Sweep, both at home and at the Steam Railway with his volunteer supervisor. They have ensured information is in an accessible format, supporting Sweep to consider key concepts, risks and benefits. Within this, it has included responsibilities and scenarios that has enabled them to form an easy read action plan and agreement.

The staff have applied the presumption of capacity, alongside education and graded support, as a result Sweep has shown the ability to provide informed consent to sign his action plan and agreement that is then included as a part of his care and support plans to attend independently. Please note that staff have further completed risk assessments and other relevant documents as needed.

Decision #2

The support team have worked alongside Sweep at the home as well as ‘in action’ on journeys to explore routes, methods of transport, safety, and scenarios. Sweep has been able to voice appropriate understanding, retention and weighing up, during which he has expressed a preference for travelling by bus, clearly declining the option of using a taxi.

However, Sweep has demonstrated Executive Dysfunction when travelling, as he becomes hyper-fixated on the journey and destination, to the exclusion of all surrounding risks (such as when crossing roads). On speaking to Sweep after these journeys, Sweep has been unable to recognise the risks of his actions, or the possible outcomes had staff not intervened for his safety. Based upon this, the support team have a ‘reasonable belief’ that he may lack capacity for the decision to travel independently to his volunteer placement. Therefore, they have actioned a Mental Capacity Assessment to be completed. 

From which, it was found that Sweep lacked capacity for independent travel to his volunteer place at this time. Therefore, they have involved Sweep and family members within the Best Interest Decision. From which, Sweep is going to have 1:1 support for travel, which will include educational steps and goals in the aims of developing skills. This will be reviewed regularly, reducing support to shadowing when it is appropriate and safe to do so, then re-evaluating the assessment.

Presume capacity, but assess when needed

If ever there is a reasonable belief that a person cannot provide informed consent for a specific decision, then it is the responsibility of those seeking consent to assess capacity or arrange for an assessment with an appropriately trained professional

If in any doubt as to whether to assess capacity, it is highly recommended to seek professional guidance from appropriate persons and ensure suitable documentation of events. 

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