Feature

posted 9 Oct 2002 in Volume 7 Issue 6

Decision-making and mental capacity: a transitional stage

This is a transitional stage in the development of mental health law. New legislation is imminent, as a new bill has been introduced to reform and revise the Mental Health Act 1983. This was preceded by further proposals for consultation on the planned legislation and guidance that might be installed as a result of a new Act¹. Ray Avards, a community care adviser at Campbell-Taylor Solicitors examines the latest proposals and, using a case history, considers the consequences of the current situation and the possible pitfalls of planned changes.

These proposals included consideration of Safeguards for Patients with Long-Term Mental Incapacity² and reference to guidance for hospital practitioners (HSC 1998/122): “To ensure that account is taken both of a patient’s ascertainable wishes and feelings and the views of their immediate relatives on what would be in the patients best interests³”. Guidance that has a distinct resonance in relation to the ability to make decisions where there may be a question about mental capacity. The possibility of such guidance is now a long time in the making, building upon previous consultation in Who Decides (CM3803) and proposals Making Decisions (CM 4465).

The Law Commission has noted in the past that there is a particular difficulty in the “identification of mental incapacity”; failure to manage affairs properly may be as, “attributable to lack of inclination as to positive lack of mental capacity”. One may also note lack of inclination may be used as a disguise for lack of capacity. The Commission concludes that: “Taking any definition of `incapacity’ inevitably involves taking a subjective rather than an objective view⁴.

These concerns were fundamental to the genesis of the 1985 Act of Enduring Power of Attorney (EPA) and the social policy that lay behind it. To provide a means for decision-making on behalf of someone who may have lost the capacity to do so for him or herself. Under this Act the lack of authority to grant to an attorney the ability to make decisions regarding health and welfare in addition to complete powers over legal and financial affairs has nagged at the heels of legislators and been a source of debate for professionals, administrators, lawyers and advocates.

In juxtaposition to debate over the powers of attorneys there has been recognition of the need to enable and empower the decision-making capacity of individuals who may be disadvantaged by apparent dependency and vulnerability. This is reflected in wider government initiatives (National Service Framework for Mental Health Dept. of Health). An example in relation to learning disabilities in care planning and in assumptions of person-centred care is the stated assumption of the right to choose between options for a care placement (Standard One - National Minimum Standards for Adult Placements).

Case history

This is a case history, which may help to show the consequences of the current situation but also reveal some of the pitfalls of planned changes. The initials and some of the circumstances and facts have been changed but do not affect the nature of what happened.

It is a case history about an older person’s rights and wishes and the way in which the holders of positions of power or authority understood or chose to understand the position. It is also an examination of the very different way lawyers, advisers and advocates, relatives, friends and social services may deal with the same situation

K was having difficulty managing at home in the autumn of 2000. A care assessment had not led to any care services being provided, but some support from F a relative existed. However, K had a fall and went to hospital. She became apparently confused and was referred for a psychiatric assessment before discharge. The psychiatrist identified the possibility of some loss of faculty that could make her vulnerable to abuse of her circumstances.

Other interested parties became involved including R, another relative. R applied for an Enduring Power of Attorney to be held jointly with F and sought its registration.

K was allowed to leave hospital without proper consultation about her needs after discharge. As an older person since April 2002 she would have been entitled to a multi-disciplinary assessment and statement of needs under the National Service Framework for Older People. Her local Social Services did not pick this case up again or follow it at the time of discharge.

K had financial resources and a property in her name. She was not managing at home. R took her to a residential care home in the vicinity of R’s address many miles from the area where she had lived and grown up. The way this was achieved and the explanation given to K is not known. F disputed this immediately and visited K who understood she was not where she had been and wanted to go back.

R requested the keys to K’s property held by F, but F refused to hand them over. At the time the use of trial periods of up to six weeks pending a permanent stay in a care home had little substance as residents rarely left the homes or were able to make alternative arrangements. (A 12 week disregard of property and deferred payments provisions (LAC (2001) 25) have been available since April 2001 enabling a delay in payment of fees directly out of resources or sale of a property in an attempt to enable a reversal of a move into a care to be a more realistic option for those with personal financial resources).

F advised the Local Authority Social services of what had happened. They would have been alerted to the dangers of abuse if they had examined their records. They could have made themselves aware that an earlier report by a community psychiatrist indicated there was a possible risk of financial abuse. Local authority and multi-agency agreed adult protection policies based upon Department of Health guidance (No Secrets Guidance on Developing Multi-agency Policies and Procedures Protect Vulnerable adults from Abuse) in existence in many areas, deal with reports of actual abuse. They are not usually applied alongside social work practice, an extraordinary state of affairs on reflection.

They did not act, indicating the situation had passed into the hands of the Local Authority within which K now resided at the residential care home. The receiving authority within whose area M had moved, acted similarly, contrary to guidance and implied the situation could not be addressed or resolved by them either. As in this case, a high percentage of care homes are chosen by someone other than the resident⁵. This is perfectly acceptable if that accords with the needs of the circumstances and is not in contravention of the wishes of the would-be resident⁶. Often this is not the case however, and choice is lost as a consequence of individual action by relatives or friends or inaction by local authorities through inadequate assessment, case management, funding or other local policy.

The Local Authority did not prevent the exercise of free will by K. However, they did little to preserve it either despite having a duty to ensure K could exercise individual preferences if possible⁷.

Local government and health authorities are concerned with the aggregate position of all of the potential population of users of services a particular authority may serve, not just the one person in front of them. Unfortunately, if there is a golden hour in the treatment of those who suffer severe physical injuries as the result of an accident there is also a critical period at the point when decisions can still be made by a frail or vulnerable individual. Paradoxically, it is delay that may be most beneficial in these cases, especially for older people. Time may be a commodity in even shorter supply than funding in many social and health care situations.

Advocacy

It was clearly the case that the questions regarding K’s wishes and choices about her care and its location had been raised and not resolved.

Where there is doubt over the wishes of users or where carers appear to be in conflict among themselves, it is a requirement under policy guidance to enable independent advocacy as part of any assessment where it is reasonably required⁸. Here it was not only required on the facts it was offered to the Authority.

F had contacted an advocacy adviser working within a charity for older people. They proved very active on behalf of K. They sought the involvement of the Social Services in the originating area and forced an internal investigation by formal complaint. Their actions led to a meeting in the new area with Social Services and they made contact with an independent volunteer advocacy service there.

The advocacy adviser also sought to obtain further medical evidence from formal medical records held by the second psychiatrist who had carried out an examination prior to the meeting. Only an equivocal response was received from this psychiatrist whose records were guarded as to K’s mental capacity and proved of little assistance in reaching any conclusions.

The meeting presided over by the second Local Authority was a failure. They accepted that K wished to return home and centred upon that issue as a return to her own home was not a realistic option at this stage. They did not consider the alternative, i.e., a return to her own area in a care home of preference that could meet her needs.

The meeting did not examine all the facts and evidence at its disposal. It was recorded that K did not want to be in the new area but drew the simple conclusion that she could not go home and live on her own again. No question of choice of care home was raised. The Local Authority compounded the situation by breaching the confidentiality of the local independent advocate by revealing information she had vouchsafed to them at the meeting. This served to alienate the local independent advocate and any advocacy support on the case effectively passed back to the original advocacy adviser.

There are two sentences concerning advocacy in Making Decisions⁹. They indicate that during national consultation many people raised the importance of this role in supporting the rights of a person without capacity during the consultation exercise, but that the government intends to consider this further including ‘may be’ in the context of the Review of the Mental Health Act. The postscript to the reforms intended may well indicate this was an example of too little attention, too late. It remains a requirement of social work assessment that independent advocacy should be sought and offered where there is a need for it.

By now K could not understand why she had been left in the home in a different area to where she lived. Both social services departments had effectively ruled themselves out of the equation and at the same time failed to support K or her need for independent advocacy. Her relative F could not understand the position either and why there had been no progress in resolving these issues. She herself was retired and was becoming as bewildered by the inability of lawyers, doctors, advocates and most of all social workers to understand the simple question that K be given a choice of where she could live.

This was only one of several interventions, which did not lead to an opportunity to listen to K’s wishes or concerns. In practice, once there is doubt about capacity, unless there is an independent advocate of some kind, decision-making is likely to rapidly disappear out of the hands of that individual. The assessment and its informal conclusions may have led to decisions being taken in her stead precisely because doubts had arisen.

Psychiatric assessment

A Psychiatrist had raised concerns at an early stage of a threat of financial abuse as stated above. There is an existing assumption in law, endorsed by the new proposals as a safeguard against the removal of rights, that capacity or lack of capacity continues unless contradicted. Each individual person should have the power to express preferences, so that it can be assumed that “all practicable steps will be taken to enable him or her to do so have been taken without success”¹⁰.

A recognition of the limits of a test of capacity is fundamental to any change in the law affecting decision-making. There are currently two stages to the test laid:

The ability to comprehend and retain information material to a decision;
Having retained the information, the capacity to weigh it in the balance and decide¹¹.

I would add that it is critical to this test to recognise that difficulties in communication may undermine the reliance placed upon it.

Preferences must still be sought however they are arrived at or expressed by the individual concerned. These preferences should not be ignored because of these difficulties. In fact, they should be attended to even more closely and recorded in order to preserve any capacity to express preferences in some form.

Doctors are aware mental abilities fluctuate. This is particularly characteristic of dementia. There is also an expectation that doctors will seek to enhance or at least maintain mental abilities. If there is likely to be an improvement any test of capacity should be delayed¹². The psychiatrist who did the informal assessment was very experienced and may have deliberately refrained from a diagnosis about K’s mental state prior to her discharge from hospital assuming there would be an opportunity later.

K was not enabled to have such a sensitive test again to enable her to make or at the very least contribute to relatively simple though fundamental decisions for herself. She had a psychiatric assessment later as a result of F’s pressure and due to the involvement of an advocacy service in an effort to clarify her mental capacity. It did not avail her.

If K could grant joint Enduring Power of Attorney she could surely decide which part of the country she wanted to live in a short time later. By comparison the power to grant an EPA does not require the donor of that power to have the ability to carry out those tasks (if it did an individual would not need it to be registered). It requires an understanding of the extent and nature of the powers conveyed – namely, the assumption of complete control of financial affairs by the donee to the same level of power as the donor and that this will continue if mental capacity is lost and will be irrevocable unless required otherwise by the Court of Protection.

An objection

The joint EPA now became the focus of the dispute between the two relatives. F attempted to challenge the EPA and the Authority of R in retrospect to have placed K in the care home away from the place she had lived for many years.

An EPA can only be created, as far as the law is concerned, by someone who has the mental capacity to understand the nature of the power they are conveying to another person and the free will and intention to do it. Further more, it is assumed mental capacity to make decisions continues until events or evidence call that assumption into doubt. In this case capacity to grant an EPA was followed by an assumption of incapacity to be able to make a choice of living accommodation!

The advocacy adviser again sought to clarify the rights of K to express her wishes/preference where possible irrespective of the motives or aims of contending parties. In effect seeking to balance apparent rights and duties created in law by the EPA between the contending parties R and F with the individual human rights revealed by the situation.

The Public Trust Office, now the Public Guardianship 0ffice were involved. Their involvement would to an onlooker, subsequently appear to be a debate about a situation already decided as the existing joint EPA was subsequently endorsed despite objections¹³.

They had however to arbitrate on the EPA and a representative for the Lord Chancellor was sent to visit K and to examine the position. An objection to an EPA can be valid if any of the attorneys is unsuitable, having regard to all the circumstances and in particular the attorney’s relationship to the donor¹⁴. However, the objection must be laid in the correct form. This is the primary concern, not whether there is a valid ground for objection, an argument that throws the granting of the EPA into doubt.

Once the objection is upheld the problem for the Court of Protection is that the Power cannot be registered at all even though the other joint attorneys may be perfectly trustworthy appointments. This could have the effect of leaving a vulnerable person without any representation at a critical time. This is not the case where an existing and registered EPA is already in existence.

There is protection for third parties as a result of revocation or invalidity of an EPA as dealings carried out, for example contracts signed on behalf of a person assumed to be mentally incapacitated. In these situations there is a reliance upon the fact of registration as a means of protection for attorneys and those with whom they carry out transactions, which mitigates against subsequent revocation or annulment of an EPA in the case of an elderly and frail client decisions are likely to become irreversible in many cases, equally the ability to revoke or deregister an EPA¹⁵. Statistics would make interesting reading upon the number of EPAs overturned and the reasons why.

Continuing power of attorney

The solution put forward by the government after consultation in its Making Decisions proposals for change to decision-making in relation to mental capacity is the creation of a Continuing Power of Attorney (CPA). Enabling application and registration on behalf of a mentally incapacitated other to take decisions in respect of personal health and welfare as well as in respect of legal and financial affairs (with the reservation of certain key rights that can only be exercised by an individual or through medical decision-making in extremis).

This is based upon three key principles, a revision of the test of mental capacity, a definition of ‘best interests’ that can be put into practice and a ‘general authority to act reasonably’. The general authority to act is designed to enable limited access to personal finances, for example, to enable care to be provided in an emergency.

The underlying premise is a laudable one: “To encourage people to take for themselves those decisions which they are able to take¹⁶.” Best interest guidelines include:

Ascertainable past and present wishes;
Participation in the process of decision-making;
Views of relevant others;
Maintenance of rights and freedoms.

It is clear that the last entitlement may be severely affected by the interaction and outcome of the first three and should in fact be the keeper of them. The Human Rights Act is based upon just such a fundamental premise as the last of these four.

Best interests as defined in a recent case¹⁷ requires an appraisal of general welfare. It is not possible to make judgements with absolute finality about the welfare of an individual. A balance sheet of advantages and disadvantages does not accurately reflect how all decisions are made. A key aspect or element related to an individual person and individual experience may be decisive in an implied preference even though totally illogical to an observer.

Will a CPA as a power wielded by a relative effectively extinguish a preference expressed by a vulnerable individual? Legal powers once installed may assume the mantle of the irrevocable even if safeguards are available or challenges can be made. How will they be exercised? With the proper application of best interests, preferences can be quickly recognised and responded to. It is however, a fact that they are not in many cases, which has caused the debate and the proposals for a CPA as a legal device to solve this issue. Is one person in a position to understand all the key factors sufficiently clearly to exercise such fundamental control of an individual person’s destiny as that envisaged through the granting of a CPA?

Have we been here before with proxy decisions (advance statements)¹⁸ where the arguments were concerned with the dangers of decisions being assumed to have been made where individual circumstances and personal relationships had changed.

The problem remains that these are legal assumptions of power and control in many situations of extreme vulnerability and dependency. They will be applied in situations where lawyers, the courts, the Public Guardianship Office are involved. They will not necessarily be applied, recognised or acted upon in the numerous other situations where an individual has not been formally assessed as lacking mental capacity to make particular or general decisions, is not formally represented and is facing key choices.

The ability to challenge a CPA would appear critical. It is assumed in the government’s discussion that there will be a period after declaration to register an objection or mount a challenge. What will be vital is a power for an anytime review.

The law currently favours the continuation/maintenance of a validly registered power as opposed to one that appears to satisfy natural justice. Is this likely to be one of the realities of a CPA – the fulfilling of a legal need and legal functioning at the expense of vulnerable individuals with limited mental capacity in being enabled to exercise some rights and fulfill some wishes?

Decision-making in practice

As is understood by lawyers, there are different legal tests for mental capacity according to different legal powers being invoked. The government proposals assume a functional test of whether there is or has been capacity to make a particular decision. A medical assessment of mental capacity should be guided by a test related to the nature of the deed intended and the expectations arising from it.

The reliability of a test of capacity as an indicator will remain dependent upon the manner in which it is carried out. There are no guidelines, (but there are proposals to introduce them), only recommendations to medical practitioners about how they should perform these functions¹⁹. In the case of retrospective assumptions about decisions that have already been taken or deeds carried out by an individual or by others in their stead, this is very problematic.

What was an individual’s state of mind when executing a will or deciding in advance what treatment to accept if in hospital and unable through incapacity to express wishes at the time? This is not only about the capacity to have made or not made decisions, hugely important though that is in itself. It is also about whether opportunities were given at the time to express wishes irrespective of what has been decided in the past. If that was not possible for whatever reason, the fact should be recorded somewhere.

The assumption of functionality is that each situation and decision should be examined in turn. This is rarely the case in practise. Health and social services often undermine individual rights without direct intention by the rigidity of case and care management, or limited knowledge and training with regard to decision-making and fear of legal action or redress being sought against them. This leads to the opposite effect to that intended in recent proposals²⁰, a tendency or assumption to rely upon a single test or examination for all the decisions and consequences that arise.

It is often only after the key decisions have already been made on behalf of a vulnerable person that queries arise about the validity of them, particularly within families. It is at this point that there is a tendency among authorities and professionals to justify what has already occurred and endorse previous decisions that have been made. In this way it is hoped to avoid the admission of uncertainty, doubt or mistake but has the reverse effect of arousing suspicion.

Protecting decision-making without protecting rights

The need for a legal duty of best interests and the need to legislate for its inclusion has been part of the discussion concerning reform of decision-making for those with mental incapacity since 1995²¹. However, it is the location of best interests that is critical. It is one of the contentions of this article that it cannot reside in any one person or corporate body; it arises out of the operation of checks and balances at key decision-making points.

Without the provision for individual rights and wishes reflected and expressed as free and as far as possible from influence or coercion, the underpinning of law or guidance may fail. The CPA and the general authority to act may serve to ensure that there is clarity of implementation, but cannot ensure respect for that individual’s human rights. That can only be achieved if those rights are respected at the outset. This is where other services and service providers can step in and assist, particularly in the voluntary sector.

There is an assumption of the CPA that it will lead to an ability to resolve the tensions between the urgency of a situation and the need to decide who has responsibility and authority for which decisions. Currently there is a patchwork of responsibilities and duties rights and powers that can take a variety of courses. I will advocate that it is not a technical solution to these issues alone that will resolve them.

Medical assessment remains critical to initial decisions of incapacity and this is a Pandora’s box of problems. Mental health tests are often carried out at the most inauspicious times and circumstances. For example when a patient in hospital is very confused or isolated and when a doctor or psychiatrist is very pressurized by relatives, other professionals, lack of time or lack of attention to a very critical, individual and personal situation. There is a planned introduction of guidelines for medical practitioners as part of the new decision-making provision for assessment of capacity.

An aim of legislation or guidance should be to separate decision-making from assessment of mental capacity. Reduction in mental capacity does not necessarily result in an inability to express wishes or preferences. A CPA will have this effect. It will create the ability to bind intimate personal decisions to the exercise of legal powers of decision-making over a vulnerable person by another or others. This is the source of the justifiable hesitation that has occurred over the introduction of such a change.

Is the CPA part of a desire to clarify decision-making for those taking responsibility for the vulnerable at the expense of their rights?

Recommendations

Directions are implemented under legislation for decision-making with a requirement that they be followed and applied to social and health services, including limitations of action that will apply irrespective of changes to mental health legislation/guidance;
Best interests based upon person-centred care and real empowerment through examination and recording of personal wishes as a requirement not a cosmetic exercise;
A functional approach and test for each key decision with the positive object of enabling that decision to be made by the vulnerable person wherever possible;
Guidelines for medical and psychiatric assessment that are required to be applied in every case. Currently guidelines for medical practitioners testing for mental health rely heavily upon individual medical knowledge, skill and ability, despite prescribed tests. One possibility is the requirement for a consultant to liaise with a GP before producing a decision on mental capacity, for example;
The wishes of the vulnerable person to be noted in health and care assessment plans and records irrespective of the outcome of the test of capacity;
A general authority to act should be confined to the carrying out of practical necessities arising from key decisions and not be used as a means of decision-making.

Epilogue

In the case of K her future has been decided. She must learn to live with the past, but perhaps with much less of it than she would have wished or should have had a right to expect.

Reference:

1. Reform of the Mental Health Act 1983 - Proposals for consultation www.archive.official-documents.co.uk

2. ibid ch.11

3. as above ch11

4. Law Comm. No 122 para. 3.3)

5. Half a Century of Promises, Prof Alan Walker Counsel and Care

6. The Choice is Yours Counsel and Care 2000

7. Under Choice of Accommodation Directions National Assistance Act 1948 as amended and Hargreaves v North Yorkshire 1994 reference policy guidance: Community Care in the Next Decade and Beyond paras. 3.16 and 3.25.

8. Care Management and Assessment Practitioners Guide SSI 1991

9. para 21 CM4465

10. Law Commission 231. See Re C 1994 re an inability to make a decision.

11. Re MB (1997) 2 FLR 541

12. Assessment of Mental Capacity Guidance for Doctors and Lawyers, BMA 1995

13. See Gordon Ashton article, ECA, September/October 2001, page 11.

14. S6 (5) (e) Sch. 3 para 4 EPA Cretney and Lush 1996

15. Enduring Powers of Attorney, Lush and Cretney 1996

16. Law Comm. 231 Para 7.1

17. Re A (2000) 1 FLR 549

18. HL PAPER 21-1 Para 268

19. Assessment of Mental Capacity BMA