By Dr Emma Cameron and James Codling
A term that is often misunderstood, in the context of the Mental Capacity Act 2005, is ‘material time’, which is used at section 2(1) of the MCA:
In our experience, and based on research we are undertaking, we have found that many professionals in the health and social care sectors have artificially created a ‘rule’ that suggests ‘material time’ means only considering a person’s capacity to make a specific decision at the time of the conversation with the person.
This means they do not always consider observational real-world evidence from families, carers or professionals as part of the capacity assessment, even when this may be applicable to the decision in hand.
A false rule
This rule around ‘material time’ is a falsehood, and a potentially dangerous one at that. Neither the MCA nor the MCA code of practice suggest that capacity assessments can only be determined with the person in an interview setting (see paragraph 4.21 of the code of practice).
The wording is ‘material time’, and we have to understand that what constitutes ‘material time’ will depend on the type and nature of the decision that you are supporting a person with. Decisions can be:
- Decisional (just in the moment);
- Decisional and performative in their nature (ie application of information also takes place outside of the discussion).
A simple example of a decision which is only ‘decisional’ would be determining whether a person has capacity to consent to support with their personal care on that day, in that moment.
In this instance, we are supporting the person to make a decision in relation to a ‘task’ that is happening in the here and now at the ‘material time’, and the person would not need to understand, retain, use or weigh this information any longer than the task required. This would be the same as creating a lasting power of attorney or will, for example.
Performative decisions
However, if you look at many of the decisions social workers and their colleagues are supporting people with, these are rarely just ‘decisional’, tending to constitute both ‘decisional’ and ‘performative’ considerations.
This means the person has to understand, retain and use or weigh the relevant information, not only in the abstract assessment conversation, but also outside of this; applying information in practice at the time that they themselves need to make the decision. This could well be the case for social care practitioners when considering capacity in relation to:
- Care and support arrangements (especially in the context of self-neglect);
- Managing finances;
- Managing medication;
- Decisions about sexual relations (see the Court of Appeal decision in A Local Authority v JB [2020] EWCA Civ 735);
- Managing safety online;
- Capacity to conduct court proceedings (see Court of Protection decision in TB v KB and LH [2019] EWCOP 14).
Decisional and executive capacity
This leads us to consider the terms ‘decisional’ and ‘executive’ capacity. The first point that we want to make is that these terms are not mentioned in the MCA nor the MCA code of practice, and we would strongly advise that professionals keep to the clear language of the MCA for recorded capacity assessments.
However, they are important contextual terms to use when we want to explain the challenges of assessing a person’s decision-making capacity when they can seemingly ‘talk the talk’ (decisional capacity), but cannot ‘walk the walk’ (executive capacity); especially when we believe that this inability to ‘walk the walk’ may be “because of an impairment of, or a disturbance in the functioning of, the mind or brain”.
The terms decisional and executive capacity (sometimes worded in other forms) have been part of academic health discussions for around 40 years. In the 2010 paper Patient autonomy for the management of chronic conditions: A two-component re-conceptualization, the authors (Naik, A et al) summarised the issue as:
However, these terms only really came to the attention of most social care practitioners with the 2011 Social Care Institute for Excellence paper Self-neglect and adult safeguarding: findings from research (Braye, S; Orr, D; and Preston-Shoot, M). The following quote perfectly articulates how the authors of this paper identified these issues:
We believe that the issues associated with executive capacity are often still ignored in capacity assessments because:
- Professionals have an incorrect interpretation of what is meant by ‘material time’; or
- There is a lack of confidence/ training in how to conduct and/or record such issues.
However, this will be addressed at the end of the article.
Executive functioning/dysfunction
Executive functioning is an umbrella term used to identify a wide range of cognitive functions commonly thought to be situated in the frontal lobes of the brain. This includes, for example: insight, attention, planning, organisation, initiation, generating ideas, inhibition, control of behaviours and emotions, problem-solving, evaluation, judgment and decision-making skills.
If these executive functions do not develop normally, or are damaged by brain injury or illness, this can cause something called ‘executive dysfunction’. Cognitive impairments associated with executive dysfunction can cause significant challenges for the person, but also for individuals offering that person support, as they are typically more subtle than other impairments and so can be hard to evidence.
As someone with executive dysfunction will not have all of the myriad of difficulties noted above, this means that a person might have good insight or awareness into a particular problem that you are talking about and plan in conversation around it – but might not be able to organise themselves to initiate this plan or control their behaviour in the moment.
If the person has good language skills and can talk around the issue competently, then without a performative aspect to the capacity assessment, we might wrongly assume that the person has capacity when they cannot in reality ‘walk the walk.’
The Pyramid Model of Awareness
Let’s just take insight, or awareness, as an example of one way an executive functioning problem could ‘skew’ capacity assessment results without a performative part to the capacity assessment.
A simple and commonly used model of awareness is the Pyramid Model of Awareness (Crosslon et al, 1989). It describes awareness as having three levels, which are interdependent with each building upon the level or levels below.
- The base level, ‘intellectual awareness’, is where the individual has knowledge of a deficit. For example, a client might tell you, “I have a memory problem.”
- The second level, ‘emergent awareness’, is where the individual has knowledge of deficits and can describe what these difficulties might mean. For example, a client might tell you, “I have a memory problem and this means I struggle to take in and remember information, or do things that are in my day-to-day routine.”
- The third level, ‘anticipatory awareness’, means that the individual is additionally aware of, and able to anticipate and discuss, what this might mean in everyday life. For example, a client might say, “I have a memory problem, which means I struggle to take in and remember information or complete parts of my day-to-day routine. Therefore I will use a notes system on my fridge to remind me to eat and to check the dates of food before I eat them.”
Note, at none of these levels does the client have to show that they can actually use the knowledge about their deficit (in this case, memory) to change what they do in practice (when they ‘walk the walk’) by, for example:
- Making notes in the first place; and then
- Using the notes so they remember the tasks they need to complete.
In the context of the MCA, this can be linked back to not only the person’s ability to ‘understand the relevant information’ at the time it is required, but also the ability to ‘use’ the relevant information to make the decision at the time it is required.
Frontal lobe paradox
If a capacity assessment just takes the form of interviews, this would mask the individual’s deficits as the person can ‘talk the talk’ but potentially may not be able to ‘walk the walk.’
This presentation in the field of brain injury is known as the ‘frontal lobe paradox’, which you can find out more about through this article by Melanie George and Sam Gilbert. Assessing capacity for people presenting in such a way is therefore best done using the ‘articulate/demonstrate’ method, which requires the person to both tell you how they would make an informed decision and also demonstrate this in practice.
It is important to note that this is a simplified overview of the terms executive functioning and executive dysfunction, but it has hopefully given you a useful overview. Unlike the phrases decisional and executive capacity, executive functioning and executive dysfunction are recognised clinical terms and as such should only be used when supported by clinical evidence, typically from clinical psychologists, psychiatrists or occupational therapists. It is also important to note that, should executive functioning problems be mentioned in clinical reports, this alone is not evidence of a lack of capacity.
As can be seen above, executive functioning (and indeed brain functioning) is highly complex and is interrelated to other thinking skills. Many individuals with executive dysfunction are still able to make a wide range of capacitous decisions, especially when the person has all practicable support to do so. Any doubts about capacity can take clinical evidence about executive functioning into account as part of the decision-making process, and indeed this would help indicate how to go about conducting the capacity assessment, but would not indicate a lack of capacity in and of itself.
Considering these issues in practice
The 39 Essex Chambers Mental Capacity Guidance Note: A Brief Guide to Carrying out Capacity Assessments – June 2020 offers some helpful guidance on how to consider this in practice:
- You can legitimately conclude that a person lacks capacity to make a decision if they cannot understand or use/weigh the information, that they cannot implement what they will say that they do in the abstract, or (if relevant) that when needed, they are unable to bring to mind the information needed to implement a decision;
BUT
- You can only reach such a finding where there is clearly documented evidence of repeated mismatch. This means, in consequence, it is very unlikely ever to be right to reach a conclusion that the person lacked capacity for this reason on the basis of one assessment alone.
AND
- If you conclude that the person lacks capacity to make the decision, you must explain how the deficits that you have identified – and documented – relate to the functional tests in the MCA. You need to be able to explain how the deficit you have identified means (even with all practicable support) that the person cannot understand, retain, use and weigh relevant information, or communicate their decision.
We are hoping to look at these issues in greater detail when our final paper on this topic is published, which has a particular focus on people with acquired brain injuries. In the future we also aim to develop practical guidance for social care professionals to enable them to more effectively consider these issues in practice.
If you wish to find out more email: james.codling@cambridgeshire.gov.uk
A longer version of this article is also available.
Dr Emma Cameron is a highly specialist clinical psychologist at the National Hospital for Neurology and Neurosurgery and James Codling MCA/Dols training and development manager at Cambridgeshire County Council
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This is why Doctors should be the decision makers not Social workers. It is clear that Social workers have less knowlege of the workings of the brain than they do. Social Workers should never have been given responsibility for Mental Capacity Assessments.
I agree that social workers have less knowledge of the workings of the brain and as the article states we could not use the clinical term of executive functioning or dysfunction but we are in a strong position to collate ‘real world’ evidence from a wide range of sources about someone’s difficulty in putting their knowledge into practice. I think social workers are often the best placed professional to undertake capacity assessments and we do it well.
I really don’t agree that social workers should not have responsibility for capacity assessments because they have less knowledge of the brain. The person best placed to do the assessment is a person who knows the person with the impairment fairly well.
You do not have to have knowledge of the brain to know what difficulties an impairment might cause for the person, whether it is in decision making or completing tasks. Going off topic slightly I know but I think this example demonstrates this: I have accompanied many learning disabled adults to benefits assessments, conducted by medical professionals (including doctors) who simply seem to lack the understanding that many learning disabled people can “talk the talk” but cannot “walk the walk”. This results in an incorrect assessment that the person with the impairment can carry out certain tasks that they really cannot, without the support of others.
Let us also not forget that originally psychiatrists and psychologists were tasked with completing mental capacity assessments but this was then passed down the line to other professionals because the doctors raised objections because they were afraid of getting sued/challenged for making incorrect decisions.
Yes this is true, I have had GPs decline to complete mental capacity assessments due to fear of getting it wrong and being sued or taken to court.
I don’t think capacity assessments have been passed down the line at all. I know a mixture of professionals still complete capacity assessments – both OTs, psychologists, doctors and social workers. It’s just who’s best for the job really, because, as you say, it’s important to have someone there who knows the person well. Though I think knowing the impairment well and the MCA is also very important, so generally having two people conducting assessments is a gold standard, potentially from different professions. I think this article is talking about the value of MDT-working?
I disagree as each have their own important skills which should be used in tandem, for one is using the ‘social model’ while the other is using the ‘medical model’, when rally it should be a mixture of both.
For example, my wife was in hospital last year and the consultant formed the opinion, that she needed to be on 24/7 oxygen when she was discharged and he assumed, wrongly that my wife would mention this to me.
But she has a memory problem sometimes, while showing confidence and strength in her manner.
What she did mention to me was that the Consultant was considering 24/7 oxygen at home and thought he would discuss this with me.
A week went by and I had no such discussion, so I enquired what was happening after the week had gone by when I made my daily visit, to be informed that the process had been concluded.
But, to my no home assessment had been done, so they did not know we had 24/7 care for our daughter, who lives at home with us, I had not informed my house insurers or anyone else.
While I was visiting my wife the oxygen supplier tried to deliver the oxygen, which was, rightly refused by our daughters carers.
I then found out that the Home assessment had not been done, so this was done on my next day visit and I agreed to the oxygen delivery.
I would mention that my wife had mentioned for them to discuss this with me, which they saw fit to ignore.
I was given no consideration and left completely in the dark.
I was my not only my wife’s husband, but also her carer and therefore was the person who took responsibility for the management of the oxygen as my wife relied on me for everything, her choice.
But choice is also something that is ignored by hospitals as well as carers and with COVID-19 carers are going to be more evident than they were previously in their number and their responsibilities.
Hospitals need to consider ‘person-centred ‘care instead of ‘institutional’ care.
The care team is not just hospital personal, but everyone within the caring of a person, including the person themselves, which at times is seen as an object and an inconvenience to some hospital staff.
I am not blaming the staff, but the system, as the staff do their best within the constraints of the system.
What an interesting article that will definitely help me in some of the complex capacity assessments that I complete on a very regular basis. It makes me think of ‘the longitudinal approach’ that has been referenced in recent case law. Also reinforces the need to ensure the right people are involved in the assessment, but I disagree with A Man Called Horse that they should always be done by doctors, we might just benefit from including them in the preparation & analysis (if they’re involved).
I have a question here-is the point being raised between the sometimes disparity between the decisional and perfomative in relation solely to ABI? If not the article needs to be clearer in my opinion
This is a really complex area and from my understanding there is little case law on the matter.
Lots of people (myself included) make a decision and do something else entirely. I think that’s human and not a sign of lack of capacity. However I understand in cases of ABI the disparity between what the person might say and do, in terms of what the article says, might suggest a lack of capacity, due to executive dysfunction.
I know the article says it at the end, but it really should be emphasised in my opinion – that the difficulty making the decision (decisional or performative) has to have a direct causal link with the impairment. Otherwise the line of thinking in this article risks really setting the bar very high in terms of what constitutes a capacitous decision
Be interested in what others think
This is a fantastic article and should be widely shared. As a former mental health Social Worker I have struggled to try and link the world of self neglect decision making with the impact of trauma and executive brain function for those who do not work in mental health services and those that do for many years now using case law to describe how a person must employ the skills. This provides a better way of explaining things and should be widely shared. Thank you, this should and will make a difference.
Kind regards
Deb Barnett
And while academics pontificate and social workers wallow in how difficult this all is, the ‘client’ continues to suffer the “deficiencies” that come with inadequate assessments that seem more to do with the assessor showing other professionals how competent they are rather than clarifying the needs of the assessed. There is a difference in the cognitive ability of a person with a brain injury and those like my father who has a degenerative illness that impaires his cognition gradually. Why does this need to be turned into a philosophical and acrid discussion? Spend time with the people you are meant to be helping, don’t charge in like superheroes and do a one off assessment that becomes the standard ‘explanation’ for ever more. Here is a naive suggestion, spend time with your ‘clients’, perhaps even get to know them and their network or lack of, see the person and their life experinces, be present with them and don’t just rely on the notes you make. When the “Best Interest” assessor visited my father, we were asked to leave our living room so he could be seen in “private”. She left without asking us anything and was irritated when we wanted to know about the assessment. Apparently confidentiality prevented her talking or informing us. When my mother told her that she was the “Nearest Relative” and had rights to information, she told us her NR rights did not apply in Capacity assessments. This is the reality of our lives
People are complex. The whole essence of this dilemma is that the brain does not tell us everything about a person, but the person cannot tell us everything about their brain function. The two need to be assessed side by side and in complex situations it can be really difficult to put them together into one relationship as sometimes the brain and the person appear to contradict one another.
We shouldn’t be aiming to simplify assessments, but aiming to recognise how complex some of them can be when social workers are under pressure to move cases forward quickly. Sometimes there is no quick answer. What I am sure of is that I would prefer a social worker who understands and values the principles of MCA to assess my capacity any day of the week over even the very best psychiatrist.
@ A man called Horse- I would trust a social worker over a Dr to assess my capacity any day of the week.
It’s a bit reductive to talk about the ‘brain’ as the best indicator of capacity isn’t it? And if it is just about the brain then we really are going to struggle given that the average psychologist or doctor hardly has a sophisticated understanding of neurological disorders and rely on using a rating scale.
I don’t think they’re talking about the brain as the *best* indicator for capacity, more that it’s a complex issue that needs to consider all variables? Particularly as stage 1 of the MCA is about whether the person has an ‘impairment of mind or brain’ – and if they do that’s the whole reason we go on to complete the capacity assessment in the first place, so surely we need to consider the *impact* of that impairment (i.e. the executive element being described above) on conducting the assessment?
I’d agree, the average psychologist or GP probably doesn’t have a sophisticated understanding of neurological disorders, but I’m not sure the average social worker has a sophisticated understanding of neurological disorders either. I guess that’s where MDT working comes in and making sure we seek out expert support/ get the best people for the ‘job’ who *do* have this understanding..and train ourselves up a bit more too?
Yes, there is a degree of correlation between cognitive ability and mental capacity, but it’s not clear cut. You could have a moderately impaired client who accepts the information given by others and so makes decisions with capacity, or you could have a less impaired client who refuses to accept new information and so lacks capacity.
There are dilemmas on top of dilemmas here.
Imagine a person with dementia who, in daylight with the social worker with them, is adamant they want to stay in their own home. However, once it gets dark they get frightened and call the police and the ambulance demanding to go into care.
You could easily decide the person has capacity in the daytime, but not in the night. You could decide they need to go into a care home, but you’d be moving them in the day, when they have capacity.
This came up on the Community Care Live talking on hoarding, when it was said hoarders lack capacity if they cannot stop hoarding, even if they appear to have capacity in every other way. once again, you would be using coercive methods on someone who has capacity in the moment in which you are acting.
That does not feel right.
In your example, if they cannot recognise the problem that occurs at night, then your easy finding that they have capacity is way too easy – questionable, in fact.
And just because they lack capacity does not mean that to intervene is in their best interests, much less that coercive measures are called for. Why do I see this conflation so often?
Social workers conflate because they are more concerned to show they are “knowledgeable” and “understand the law” than being social workers. If they stopped pretending they are lawyers and doctors, incompetent at being either by the way, they might actually understand the experinces of the person in front of them.
Joe, this is why capacity decisions should be left to the Court of Protection. By all means have doctors and social workers compete with each other to prove who knows best. As we know, social workers only make decisions within budget limits and doctors are after the fees, judges or Official Solicitors cut through the waffle of both.