LegaL Powers
In safer hands?
When should the Mental
Capacity Act be used to make
decisions on behalf of
vulnerable people? Mike Ward
unpicks a complicated issue
I
n my June article (DDN, June, page 23) I highlighted how the UK’s Mental
Health Act poses problems when managing high-impact and change-resistant
dependent drinkers. However, the piece of legislation which more commonly
causes problems is the Mental Capacity Act (2005).
Let’s start with a real-life case.
Joe is a 55-year-old man who is chronically dependent on alcohol. He lives in a
small housing association flat. His drinking is a problem, but the real concern
is that drinking ‘friends’ are entering his flat and causing a nuisance. This
causes worry to neighbours and landlords. In addition, Joe appears to be
giving them money, alcohol and even his belongings. He has been warned
about allowing these people into his flat, and he has spoken in his more sober
moments about his desire and intention to stop it happening. However,
nothing has changed, and the landlords are serving him with eviction notices.
The Mental Capacity Act’s primary purpose is to provide a legal framework for
professionals acting and making decisions on behalf of adults who lack the capacity
to make particular decisions for themselves. For example, can a paramedic take a
resistant patient to hospital for treatment? Can a social worker manage the finances
of someone with a learning difficulty?
The act is decision-specific: it does not enable professionals to make a general
statement that someone lacks capacity (although this often happens). It only
allows the worker to say that a person lacks the capacity to make this particular
decision at this point in time. If an adult can be assessed as lacking the capacity to
make a particular decision, professionals can take appropriate action in the best
12 | drinkanddrugsnews | September 2018
interests of the individual.
The act does apply to people with alcohol and drug problems; a person can be
assessed as lacking capacity because of intoxication. However, the act suggests that if
someone is likely to regain capacity in the near future, ie become more sober, then the
capacity assessment should wait until that point, if possible. Herein lie the problems.
Alcohol Research UK has analysed 11 Safeguarding Adult Reviews published in
2017 which related to the deaths of people either with chronic alcohol problems or
alcohol use surrounding their death. These reviews suggest that the understanding
of the act is poor in general. However, more specific problems exist in relation to
people with alcohol misuse. The application of the Mental Capacity Act was a
concern in all 11 cases.
For example, a review from Waltham Forest highlights that:
‘The Mental Capacity Act advises you need to wait until a person is sober
before you think about capacity. However, when a person is a chronic alcohol
user it could be argued that they are never sober. More so that their ability to
reason about whether they want to stop drinking is significantly impaired
due to the addictive nature of their alcohol use. Therefore, is someone who is
a chronic alcohol user ever in a space where their addiction is not impacting
on their ability to reason?’
A review from Newcastle highlights that workers’ attitudes can also impede capacity
decisions:
‘agencies… see Lee as more troublesome than troubled, a nuisance offender,
an abuser of alcohol and drugs who chose a lifestyle that laid him open to
risk. The fact that he did not have the mental capacity to make such choices
was not recognised by some of the professionals who had contact with him.’
The biggest problem is that people like Joe continually move in and out of capacity
due to their repeated intoxication: they have ‘fluctuating capacity’. A more sober Joe
will demonstrate that he understands the problem of allowing people to come into
his property and wants to do something about it. Four hours later he will be drunk
again and will do none of the things that he has discussed. Does he have the capacity
to manage his property and prevent the potentially abusive behaviour of his ‘friends’?
This is not merely an interesting legal debate – for people like Joe this can be a
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