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Will I ever lose my right to make foolish decisions

Emma Yemm talks about what it means to have capacity & your right to make unwise decisions.

What is ‘capacity’?

Capacity is a term used to describe someone’s ability to make a specific decision. For example, your mother may not have the capacity to decide where she lives, or your son may not have the capacity to consent to his flu vaccination. But this term should not be used generally as we must remember that every decision is capacity specific. And as explained later, a person no matter how vulnerable, always retains the right to make unwise decisions.

When there are questions about a person’s ability to make a particular decision, applications are made to the Court of the Protection. Common capacity decisions seen in the Court of Protection relate to residence, care and treatment. In recent months, capacity to consent to sexual relations, the use of social media and alcohol consumption have also been discussed in court.

So how do professionals assess a person’s capacity?

The Mental Capacity Act 2005 (the MCA) is the first place to start. In section 1, it clearly outlines the fundamental principle that a person must be assumed to have capacity unless it is established otherwise and that all practicable steps have been taken to help them in making any decision.

The test for capacity is then provided for in section 2 of the MCA. Briefly speaking, if you are over the age of 18 and have a mental or physical impairment that means you cannot understand, retain, weigh up the risks and/or communicate your decision, you are likely to be considered non-capacious in that decision. A common example of this is a care home resident with a diagnosis of Dementia who cannot understand why they cannot go home because it has been sold, and they cannot remember that this has happened and been explained to them on several occasions.

When does an unwise decision become evidence of lacking capacity?

As mentioned above, every person has the right to make poor decisions. However, this causes difficulties for professionals when assessing capacity as it is human nature to want to protect those we feel are vulnerable.

A recent example is that of a young man with Autism and learning disabilities and (AA) who lived in supported accommodation. The concern that led to the court’s involvement, surrounded his particular sexual fetish as he would go on the internet and then meet with strangers, who on one occasion, happened to be a registered sex offender.

The professionals involved in AA’s care were concerned of the risks of this behaviour and subsequently applied for a standard authorisation which would authorise AA’s deprivation of liberty. The Judge was then asked not only asked to determine whether AA had consent to decide his residence, care and treatment but also his capacity to contact others and to access the internet and social media.

After much discussion and the involvement of an expert psychiatrist, the case made it clear that “repetitive and risky behaviour does not evidence a lack of capacity”. Whilst it was accepted that this man’s “impulsive and reckless decision making may have been linked to his learning disability and autism, his decision making could also represent a normal level of impulsivity and recklessness for a young person of his age[i].”

What was also emphasised by the expert is the the danger of the “protection imperative”. Our want to protect others can influence decisions on capacity and so we must remember that an autonomous person can freely make unwise decisions even if this puts themselves in danger.[ii]

So how does this effect me?

The first thing anyone should consider is making a Lasting Power of Attorney whilst considered capacious to do so and appoint someone to make decisions on your behalf when you are considered no longer able. This provides you the opportunity to express your wishes and feelings and ensure that decisions are made that reflect what you want. You can choose to appoint more than one person to manage your property and affairs as well as make health and welfare decisions on your behalf.

If your friend or relative has already been deemed to lack capacity regarding a particular issue and a decision is required, perhaps regarding residence or treatment, the best interest process should be followed and require anyone to engage with the process who is involved in the care of that person. It maybe you are also able to consider applying for deputyship to manage their finances or make welfare decisions.

If you have been deemed to lack capacity to make a certain decision or are being prevented from doing something, such as leaving your place of residence or from accessing the internet, you should contact your social worker and a Mental Capacity Act advocate to raise your concerns and request to see the authority which is lawfully preventing you from doing as you wish.

Swain & Co Solicitors

If you would like further information and advice on any of the above, please do not hesitate to contact our team on 02380 631 111.


[i] https://www.bailii.org/ew/cases/EWCOP/2020/29.html para 52

[ii] https://www.bailii.org/ew/cases/EWCOP/2020/29.html para 25

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