2.8.6. Self-neglect and mental capacity
The Mental Capacity Act 2005 (MCA) is crucial in determining what action may or may not be taken in self-neglect cases.
The MCA is designed to protect those who cannot make decisions for themselves and is underpinned by human rights principles which aim to ensure its provisions are applied in a way that respects our human rights.
When assessing the mental capacity of an adult who is self-neglecting, it is good practice to consider carrying out joint capacity assessments, for example, involving an occupational therapist who can assist with assessing the adult’s functional ability and executive capacity (see section on decisional and executive capacity).
Assessing mental capacity
An adult should be presumed to have capacity. However, there may be cases where an adult may lack understanding and insight into the impact of their self-neglecting behaviour on their or others’ wellbeing. When an adult’s behaviour or circumstances cast doubt as to whether they have capacity to make a decision, then a mental capacity assessment should be carried out.
Robust mental capacity assessments are critical in determining the approach to be taken by professionals, either to support the decision-making of an adult with capacity or to intervene to protect the best interests of an adult who lacks capacity. Any mental capacity assessment in relation to self-neglect must be time-specific and relate to a specific intervention or action. The assessment should be appropriately recorded.
It is important to clearly document how a worker has maximised an adult’s autonomy and involvement within the capacity assessment, ensuring they have been given all practical support to help them reach a decision for themselves. In relation to self-neglect, this will include exploration of the adult’s understanding of their behaviours and associated risks, including:
- Can they report back to you what the risks are?
- Can they report back to you that they know their behaviour places them at risk?
- Can they report back to you the consequences of taking these risks?
- If the risk is death, explore what the adult’s understanding and beliefs are regarding their death.
Good practice is to record the actual questions as they were asked, and the responses provided by the adult.
Adults who self-neglect may be reluctant, or find it difficult, to engage in the assessment of capacity. Please refer to section 2.8.5 ‘Working with adults who self-neglect’ for further guidance on engagement.
Fluctuating capacity
Some adults may have fluctuating capacity. This is particularly common in situations of self-neglect. It may occur as a result of their lifestyle or behaviour, and lead to making an unwise decision, for example:
- An adult may decline treatment for an overdose when under the influence of alcohol.
- An adult may prioritise a substance over a serious health need.
- An adult experiencing very high levels of distress and making unwise decisions such as those with emotionally unstable personality disorder.
This fluctuation can take place over days or weeks, or over the course of a day. Consideration should be given to undertaking the mental capacity assessment at a time when the adult is at their highest level of functioning.
Other adults may have a temporary impairment of their ability to make decisions due to an acute infection. The key question in these situations is whether the decision can wait until the adult has received treatment for the infection. In emergency situations, it is necessary to proceed with the best interests decision making process.
For adults who have ongoing fluctuating capacity, the approach taken will depend on the ‘cycle’ of the fluctuation in terms of its length and severity. It may be necessary to review the capacity assessments over a period of time.
In complex cases, legal advice should be sought.
Decisional and executive capacity
SCIE report 46 ‘Self-neglect and adult safeguarding: findings from research’ highlights the difference between capacity to make a decision (decisional capacity) and capacity to actually carry out the decision (executive capacity).
Good practice includes considering whether the adult has the capacity to act on a decision they have made (executive capacity).
Where decisional capacity is not accompanied by the ability to carry out the decision, overall capacity is impaired and interventions by professionals to reduce risk and safeguard wellbeing may be legitimate.
Frontal lobe damage is an example of a condition which may cause loss of executive brain function, resulting in difficulties with understanding, retaining, using and weighing information, and therefore affects problem solving and the ability to act on a decision at the appropriate point.
Unwise decisions
Principle 3 of the MCA enshrines a person’s right to their own values, beliefs, preferences and attitudes. However, this right does not absolve an agency from their duty of care, and anyone supporting an adult who is self-neglecting must ensure they have met their professional responsibility.
Where an adult has capacity and may be making what others consider to be an ‘unwise decision’ does not mean that no further action regarding the self-neglect is required, particularly where the risk of harm is deemed to be serious or critical.
The duty of care extends to gathering all the necessary information to inform a comprehensive risk assessment. It may be determined that there are no legal powers to intervene. However, it will be demonstrated that the risks and possible actions have been fully considered on a multi-agency basis.
It is also important for those supporting an adult with self-neglecting behaviours to have insight into their own values and beliefs in order to avoid any bias against what could be perceived as unwise decisions and behaviours.
Inherent jurisdiction
Taking a case to the High Court for a decision regarding interventions can be considered in extreme cases of self-neglect, i.e. where a person with capacity is:
- at risk of serious harm or death, and
- refuses all offers of support or interventions, or
- is unduly influenced by someone else.
The High Court has powers to intervene in such cases, although the presumption is always to protect the adult’s human rights.
Legal advice should be sought before taking this option.
Best interests decision-making
If an adult is assessed as not having capacity to make decisions in relation to their self-neglect, any subsequent decisions or acts should be made in the adult’s best interests.
Any best interests decisions should be taken formally and involve relevant professionals and anyone with an interest in the adult’s welfare, such as family. Additionally, consideration should be given as to whether an Independent Mental Capacity Advocate (IMCA) should be instructed.
Best interests must be determined by what the person would want were they to have capacity. “Lacking capacity is not an off switch for freedoms” (Wye Valley NHS Trust v Mr B, 2015, EWOCP 60). Therefore, in situations where an adult has experienced self-neglect over a long time and then loses capacity, previous behaviours must be considered when looking at the less restrictive options to keep the person as safe as possible.
If there are difficulties in making a best interests decision, it may be necessary to seek legal advice. In particularly challenging and complex cases, it may be necessary to make a referral to the Court of Protection for a best interests decision. Any referral to the Court of Protection should be discussed with Legal Services, including where there may be a ‘reasonable belief’ of lack of decision-specific capacity in situations where an adult is not engaging or refuses an assessment.