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.
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  EWCA Civ 735);
- Managing safety online;
- Capacity to conduct court proceedings (see Court of Protection decision in TB v KB and LH  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 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;
- 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.
- 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: firstname.lastname@example.org
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