Do you have the capacity?
- benjthompson1
- Feb 23, 2024
- 5 min read
ID: Lady thinking whilst looking at her computer screen.
Each and every day you and I make decisions. These could be with regard to what choice of food we eat, where we go for a coffee or what medical treatment we consent to. So in that sense we have the capacity to make decisions in our life - some important and some not so important. The Cambridge Dictionary defines the word Capacity as the: "legal right or ability of a person to make a decision, have particular responsibilities or ability to carry out a particular thing" (Cambridge Online Dictionary, 2024). Lets look at the five main reasons we must respect someone's capacity to make decisions in their daily life, how an illness, either permanent or temporary, can effect this and ways in which we can protect this legal right of ours.
Respecting a person's decision
Within England and Wales (UK) each citizen has the right in law to make decisions for themselves. However, there are times when we are unable to do this. This is were the Mental Capacity Act 2005 comes into force. It lists five main areas or "statutory principles" that govern whether we have the right to decide for ourselves or not:
A) Always assume that a person has capacity unless a court has decided otherwise
B) A person should be treated as capable of making their own decisions even if it means assisting them in various ways to understand (sign language, pictures, braille etc.)
C) Never treat a person as unable to decide just because we feel their decision is unwise
D) If a decision is made on someone's behalf, it must ALWAYS be in the best interests and not the ours
E) Always ensure that decisions are the least restrictive and never infringe on their human rights.
These five main principles are there to protect, assist and enable the approved person to make wise decisions on our behalf if needed. Why is it necessary to have a law telling us how to decide something? Imagine you buy a car (or auto for USA) and the dealer informs you that the engine can only process petrol. You go to the garage and fill the fuel tank with diesel and try and run the car on that fuel. Now you wouldn't do that would you but why? It's going to ruin the car's engine and cost you a lot of money to get it recovered and fixed by a mechanic. In the same way, if we ignore these basic principles we can seriously damage a person either mentally or physically not to mention any relationship we might have with them. Even though we might think we know best, even as a family member or best friend, we can make very bad decisions.
Ill Health and The Lack of Capacity
All of us get ill from time to time but this does not mean our family should start making decisions for us. Whatever is causing us a lack of self-awareness and legal mental capacity must do so for a prolonged period of time. For example, illnesses such as Dementia, Cancer, Muscular Dystrophy (MD) or Multiple Sclerosis (MS). These conditions can be either terminal or have damaged the brain in a way that stops all communication (in any form) and the ability to understand questions and situations. These conditions can be either permanent or temporary and include mental illnesses such as Acute Psychosis in Schizophrenia, Major Depression or Bipolar Disorder. This list is non exhaustive. Serious illness is not the only reason a person may find it difficult to maintain the capacity for decision making. It could also be down to age, an accident, illicit drugs and alcohol, burnout etc.
How to Protect Our Rights
Under the Mental Capacity Act 2005, we (termed the 'Doner') can apply to the Court of Protection to appoint a 'Donee', that means a person who we nominate to the court to either assist us to make our decisions or to make them completely for us. The court can then appoint them as our 'Lasting Power of Attorney' (LPAs). Our LPA can have the authority to make either medical decisions or financial decisions. They can also be allowed to decide both, this depends on what the Doner asks the court to do. If we feel we feel we need protection from a LPA or someone who is claiming to be our LPA and who we feel is taking advantage of our lack of capacity, we or our family can apply to the Court of Protection. The court can then either remove this person who is our registered/approved appointee or sanction them by holding them in contempt of court. A Judge can then fine them, bar that individual from holding that position again or as a last resort imprison them. That Judge can also refer the case to the police for criminal prosecution if they feel there has been any theft or abuse. The individual lacking capacity can also report the matter to the police or they can appoint a legal representative to seek monetary compensation through the civil courts.
A great place to start finding information out concerning ones rights, is by speaking to a solicitor or Barrister. There are various free law centres around the country that will offer legal advice to those who can not afford to pay due to being on a low income, being a refugee, claiming state benefits, old aged or disabled. At the end of this article I have listed a number of organisations that offer this type of support or give assistance to understand the justice processes and documentation required to submit to the correct court. Correct advice can also be found on the internet but be aware of scammers, fake information or those charging you fees before they give the information required. Good places to look for information can be from government departments through the official government website www.gov.uk or the official website in your country.
Conclusion
At some time in our lives we will all face the need to have some type of assistance in making our decisions - whether they be everyday or more life changing. Under the current Mental Capacity Act (2005), we are all required to ensure we apply five guiding principles to ensure that we remember what we decide upon must be in the best interests of that person and not what we think would be best for us or suit us. The Court of Protection or the criminal courts can enforce or appoint individuals as our Lasting Power of Attorney or LPA's. Advice and genuine information can be found either online through government websites or from registered and qualified legal representatives.
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