Mental Capacity and self-neglect

The Mental Capacity Act (MCA) 2005 provides a statutory framework for people who lack the capacity to make decisions by themselves. The Act has five statutory principles:

A person must be assumed to have capacity unless it is established that they lack capacity
A person is not to be treated as unable to make a decision unless all practicable steps have been taken without success
A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision
An act done, or decision made under this act for, or on behalf of, a person who lacks capacity must be done, or made in his or her best interests
Before the act is done, or the decision is made, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

When concerns about self-neglect are raised, there is a need to be clear about the person’s mental capacity in respect to the key decisions in relation to the proposed intervention. Any intervention must be lawful, necessary and pursue a legitimate aim. If there are any doubts about the person’s mental capacity, especially regarding their ability to ‘choose’ their living conditions or refuse support, then where possible a mental capacity assessment should be undertaken. In extreme cases of self-neglect and/or hoarding behaviour, the very nature of the environment should lead professionals to question whether the client has capacity to consent to the proposed action or intervention and trigger an assessment of that person’s mental capacity.

The professional responsible for undertaking the capacity assessment will be the professional who is proposing the specific intervention or action and is referred to as the ‘decision maker’. Although the decision maker may need to seek support from other professionals in the multidisciplinary team, they are responsible for making the final decision about a person’s capacity.

There may be circumstances in which it is useful to involve therapists in capacity assessments. For example, Occupational Therapists where the decision is around managing tasks within the home environment or Speech and Language Therapists where the person has communication difficulties.

Strong emphasis needs to be placed by practitioners on the importance of interagency communication, collaboration and the sharing of risk. The autonomy of an adult with capacity should be respected including their right to make what others might consider to be an “unwise decision”. However, this does not mean that no further action regarding the self-neglect is required. Efforts should be directed to building and maintaining supportive relationships.

Capacity assessments may not take full account of the complex nature of capacity. Self-neglect and adult safeguarding: findings from research, www.scie.org.uk/publications/reports/report46.asp highlights the difference between capacity to make a decision (decisional capacity) and capacity to actually carry out the decision. However, this distinction does not currently exist in policy or guidance.

It is good practice to consider or assess whether the person has the capacity to act on a decision that they have made. See guidance below on assessing capacity in relation to self-care.

Any capacity assessment carried out in relation to self-neglect and or hoarding behaviour must be time and decision specific and relate to a specific intervention or action. If the person is assessed as not having capacity to make decisions in relation to their self-neglect, then any decisions should be made following the best interests process, which includes taking into account the person’s views and taking the least restrictive action. Due to the complexity of such cases, there must be a Best Interests Meeting, chaired by a manager or other senior or experienced professional from the appropriate organisation and appropriately recorded in formal minutes. Additionally, consideration should be given as to whether an Independent Mental Capacity Advocate (IMCA) should be instructed. Fluctuating capacity should be considered and evidenced.

It may be necessary for the organisation to seek legal advice in order to refer to the Court of Protection (COP) to make the best interest decision.

Guidance on assessing Mental Capacity in connection to Self-Neglect

If there are any doubts about the person’s mental capacity, especially regarding their ability to ‘choose’ their living conditions or refuse support, then where possible a mental capacity assessment should be undertaken. In extreme cases of self-neglect and/or hoarding behaviour, the very nature of the environment should lead professionals to question whether the client has capacity to consent to the proposed action or intervention and trigger an assessment of that person’s mental capacity.

Capacity assessments may not take full account of the complex nature of capacity. Self-neglect and adult safeguarding: findings from research, 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 However, this distinction does not currently exist in policy or guidance.

NB: It is good practice to consider or assess whether the person has the capacity to act on a decision that they have made.

Any capacity assessment carried out in relation to self-neglect and or hoarding behaviour must be time and decision specific and relate to a specific intervention or action. If the person is assessed as not having capacity to make decisions in relation to their self-neglect, then any decisions should be made following the best interests process, which includes taking into account the person’s views and taking the least restrictive action. Due to the complexity of such cases, there must be a Best Interests Meeting, chaired by a manager or other senior or experienced professional from the appropriate organisation. and appropriately recorded in formal minutes. Additionally, consideration should be given as to whether an Independent Mental Capacity Advocate (IMCA) should be instructed. Fluctuating capacity should be considered and evidenced.

In particularly challenging and complex cases, it may be necessary for the organisation to seek legal advice in order to refer to the Court of Protection (COP) to make the best interest decision.