The concept of mental capacity

The “causative nexus”

Once you have identified an impairment or disturbance in the functioning of the mind or brain, it is important to decide whether the inability to make the decision is because of this impairment. This is known as the “causative nexus” (PC and NC v City of York Council [2013] EWCA Civ 478). Only where you can reasonably say that the person cannot make the decision because of the impairment of their mind can you say that they lack capacity to make the decision.

Chapter 4 of the Code of practice sets out more detail in relation to assessing capacity.

Moving towards a collaborative and inclusive approach to decisions for care and treatment has created a more comprehensive and inclusive process of decision making. With the MCA there is a focus on the wishes, beliefs and values of an individual; a move away from the historical, paternalistic and professionally-biased approach to decision making, towards one which is more person-centred, empowering and focused on the rights of the individual.

The MCA requires practitioners to work closer together, involve individuals in all decisions and listen to the views of others. Some practitioners have historically made unilateral decisions, which often went unquestioned, were proudly based on the best theory and evidence available and utilised their unique professional expertise. However, the MCA has introduced quite a different approach, which requires collaboration and co-operation between professionals, consideration of a range of options and decision-making processes which align decisions to the individual’s wishes, beliefs and values.

The MCA has set out a legal obligation for practitioners to not only work together, but to find agreement on decisions regarding the care and treatment of individuals. Health and social care staff are required to make joint decisions, involve other experts in decision making and ensure that family, carers or advocates are included and involved in decisions. The role of the Independent Mental Capacity Advocate is to support ‘un-befriended’ individuals who lack capacity, in decisions regarding serious medical treatment, Deprivation of liberty or changes to long-term accommodation. IMCAs have a legal standing and statutory duty to ensure that Best Interest decisions are made for those people who lack capacity and who have no appropriate family, friends or advocate who are willing to support the person.

Despite the fact that the MCA and the Code of practice have been in place for many years, there remains significant confusion amongst some health and social care practitioners, a reluctance from others and a myriad of myths that have developed, to hinder its use in practice. Health and social care practitioners need to reflect on their current practice, develop their own knowledge and awareness of the different elements of the MCA and ensure that they comply with their legal and professional responsibilities.