‘An empty book is like an infant’s soul, in which anything may be written. It is capable of all things, but containeth nothing.’
So wrote Thomas Traherne in the 17th century. Sadly, a converse situation arises for many older people. We end up as a full book but, for some, the capability to do anything in a meaningful or reliable way starts to wane and mental incapacity is the result.
Whilst well, we take mental capacity for granted. Certainly as adults, we decide for ourselves what time to get up in the morning, which clothes to wear, what to eat, where to go, how to spend our money, and so on. This is called ‘capacity’. Capacity means that we can make our own decisions in our own best interests. It is something which is considered a ‘right’ and is protected in law.
By ‘mental incapacity’ we mean the inability to make our own decisions. The causes are many, although the commonest for the elderly is dementia. That said, there are also conditions which affect younger people and affect their capacity to make decisions; congenital disorders, brain damage at birth, head trauma due to accidents, brain tumours, mental illness, severe physical illness, and the effect of drug or alcohol abuse are examples.
For some people, the loss of capacity may be a temporary state of affairs; for others it is permanent. Whichever the case, the loss of capacity can have a devastating effect on our lives. During such times, we rely on those we trust to make decisions on our behalf. However, there are some decisions which even one’s next of kin cannot take without the legal authority to do so.
In 2005, a law was passed called the Mental Capacity Act. The law is intended to protect a person who lacks capacity, and thereby ensure that decisions continue to be made in that person’s best interests and in accordance with what their own wishes would be if they were still able to make decisions for themselves. Five principles underpin this law. The first is that a person is assumed to have capacity unless proven otherwise. The second is that any decisions made on a person’s behalf must be as close as possible to what that person would have wanted. The third principle is that, wherever possible, a person should be assisted in making a decision for themselves (for example, by using very simple language or a different form of communication to explain the issue). The fourth principle is that a person has the right to make unwise decisions, as long as they understand the effects of such a decision. Finally, any decision made for a person should be the least restrictive and cause the least disturbance for that person.
Capacity is tested by the application of four questions: Is the information understood? Can the information be retained long enough to make a decision? Can the information be weighed up? Can the person’s decision be communicated in some way? The answer must be ‘yes’ to all four questions to prove capacity.
If a person lacks capacity, they need someone to act on their behalf. Many people will legally appoint a person to do this. That person has ‘Lasting Power of Attorney’. However, such a person can only be appointed whilst someone still has capacity. If no such appointment has been made, the person lacking capacity is protected by the Court of Protection, which will either appoint someone to act on behalf of the affected person, or will directly make decisions on that person’s behalf. Naturally, it is better if we appoint someone we know and trust, so we should all be granting a Lasting Power of Attorney to someone whilst we still have capacity, and regardless of how old we are or whether we are currently healthy or unwell.
A helpful leaflet on capacity can be downloaded from the Royal College of Psychiatrists’ website at http://www.rcpsych.ac.uk/mentalhealthinfo/problems/mentalcapacityandthemental.aspx. Further information can also be obtained from the Alzheimer’s Society, Mencap, MIND, your solicitor and GP.
(First published in the Scunthorpe Telegraph, Thursday, 23rd February 2012)