THE MENTAL CAPACITY MINEFIELD – Advice for relatives/carers

 When a relative or loved one loses mental capacity, it is not only difficult for the patient but also for the family and relatives that are supporting. It can be a confusing and upsetting time for all involved and people are often unaware of their legal rights or that of the patient.

Research shows that there are about 750,000 people in the UK with dementia. Dementia mainly affects people over the age of 65 and the likelihood increases with age. However, it can affect younger people: there are over 16,000 people in the UK under the age of 65 who have dementia (http://alzheimers.org.uk, 2011).

If the patient still has mental capacity or if you are unsure if they do then advice should be sought as a matter of urgency. A patient should try and arrange their financial and legal affairs while they are still able to do so. This ensures that their future needs are met in a way that they would have wanted it to be carried out.

The difficult decisions for relatives and loved ones is when the patient no longer has capacity.

In England and Wales, the law in relation to adults who lack the capacity to make decisions on their own behalf is laid down in the Mental Capacity Act 2005. The Act is based on two fundamental principles, firstly, the lack of capacity and secondly, best wishes.

 The Question of Capacity

Capacity refers to the ability that a person possesses to make specific decisions or to take actions that influence their life, ranging from a simple decision about what to have for breakfast or what clothes to wear to life changing decisions such as financial affairs or consent to medical treatment.

Relatives should be aware that the diagnosis of a condition such as dementia for example, does not automatically mean that the patient does not have capacity. Some patients may have the capacity to decide on some aspects of their life but due to whatever the cause may be they are unable to make decisions on every aspect.

It should be remembered that capacity is decision-specific and time-specific. It can be partial or temporary and capacity quite of fluctuates, especially in the early stages of a condition.

For example;

Doreen is getting ready to make her lunch and decides to have a ham sandwich and a cup of tea. She then decides to sit and watch TV when she is interrupted by the telephone. The gentleman on the telephone is trying to talk to Doreen about insurance. She becomes bewildered and confused. She then gets upset and is unable to speak to the salesman.

Doreen clearly has capacity when she decides what to make for lunch and what to watch on TV however when she is faced with the daunting task of speaking on the telephone and dealing with something outside of her ability, at that specific time in relation to that specific task.

 

The Two-Part Test and what it means:

The test of capacity is a two part test –

Test 1:

Does the patient (in our example Doreen) have an impairment of the brain? e.g. a condition or disability.

Test 2:

Does that impairment prevent the patient from making a specific decision at a specific time?

There are several symptoms that relatives will often notice when caring for a patient with questions surrounding their capacity. There are four key questions a relative should consider to answer the Capacity Test;

• Does the patient understand the information given to them?
• Can the patient retain that information in their mind?
• Can the patient use that information to make a decision?
• Can the person communicate the decision?

Now, the answers to these questions may seem relatively straight forward but relatives should be aware that assistance can be given when considering the four key questions.

The patient may need to have some help, such as a writing aid, voice recorders, the patient may use sign language, or the patient may retain the information for a short time but not a long time. All of these factors are considered within the key questions.

 Example Cont.

Doreen finishes her lunch and decides to do a crossword in the local newspaper. She is writing away when the telephone rings again. It is the bank to tell her that her direct debit for her insurance has been refused. They need Doreen to confirm if she wants to authorise the payment or if she would prefer to pay the insurance company direct.

Doreen considers the information from the bank and asks them to slowly repeat this information whilst she writes it down on her newspaper. Doreen informs the bank she will contact the insurance company and get back in touch with them.

After considering her message again Doreen gets her insurance documents out and realises that she forgot to renew her insurance. She knows that she needs to have it and it is important but is unsure what to do from there. She decides that she will take the insurance documents to the broker tomorrow and ask them for some help. She likes to deal with people face to face after all.

It is clear on this occasion that Doreen had the capacity when speaking to the bank and although this was assisted with a writing aid, she clearly understood the information and was able to retain this information to enable her to find her insurance documents.

Doreen may become confused as to how to practically resolve the issue but she does recognise the importance of the decision and she uses this as part of the decision making process, she communicated her decision to the bank and would also need to do so with the insurance broker the following day.

If Doreen had been unable to follow one out of four of the key factors due to an impairment or disturbance in her mind, then she would not have had the capacity to decide about paying the insurance.

When to seek a Medical Assessment?

If you are concerned that a loved one may be having issues with capacity then you should consult a medical professional for assistance and support.

If you are considering the financial and legal affairs of the patient then initially your solicitor will assess the capacity of the patient. If your solicitor is in doubt then they will request an opinion from a doctor or other professional with experience in assessing capacity.

 What is Best Interest?

As a relative of a loved one who has lost capacity or whose capacity is in question, the responsibilities of that individual are often left and need to be resolved.

The second consideration of the Act, relates to Best Interests. This is the criterion for an action taken or decision made on the person’s behalf.

The decision maker is expected to consider common factors which establish what is in the best interests of their loved one.

They should always consider;

• Issues of equal consideration and non-discrimination (decisions cannot be made based on a person’s age alone);
• All relevant circumstances to the individual must be considered
• The likelihood or otherwise what the individual may regain capacity
• Practical and reasonable attempts to permit and encourage participation in decision making processes by the individual;
• The wishes,  feelings, beliefs and values of the individual;
• The views of other people involved with the individual;
• Life sustaining treatment, a decision must not be motivated by a desire to bring about the individual’s death.

When assessing the needs of the patient, in terms of health and care this should be referred to the health professionals dealing with the individual.

When dealing with legal and financial issues, advice should be sought from a Solicitor.

Relatives should remember that advice is always there, if a loved one is in the early stages such as our example Doreen, then it is possible to put solutions in place to plan for the future. Even if matters are further progressed, it is not too late. Other measures are available for when a person has lost capacity and needs help.

On a more practical not, when you are caring for someone with dementia, it can be all too easy to ignore your own needs and to forget that you matter too but it’s much easier to cope if you look after your own health and wellbeing, and there is lots of support available to assist.

If you would like support and advice from our Solicitor, Stacey Phoenix, please call us on 01642 293427 or alternatively, complete our Contact Form and request a free callback.

 For support and assistance we recommend;

The Alzheimer’s society – http://www.alzheimers.org.uk

Dementia UK – http://www.dementiauk.org