Executive functioning and the Mental Capacity Act 2005: points for practice

Practical advice from a Community Care Inform guide on how to assess capacity and make best interests decisions where a person has executive functioning difficulties

Walk The Talk Concept
Photo: Krasimira Nevenova/AdobeStock

This article provides key points for practitioners from Community Care Inform Adults’ guide on executive functioning and the Mental Capacity Act 2005. The full guide is intended to help social workers and occupational therapists understand the relationship between the Mental Capacity Act 2005 and executive functioning, and looks at key case law. Inform Adults subscribers can access the full content here.

The guide is written by Community Care Inform’s legal editor, Tim Spencer-Lane, who is a lawyer specialising in mental capacity.

What is executive functioning?

Executive functioning has been described as “the ability to think, act, and solve problems, including the functions of the brain which help us learn new information, remember and retrieve the information we’ve learned in the past, and use this information to solve problems of everyday life”.

The absence of such functioning is where a person – for example, someone with an acquired brain injury or eating disorder – gives what appears to be coherent answers to questions, but it is clear from their actions that they are unable to put into effect the intentions expressed in those answers. Colloquially, this can be described as the person being able to ‘talk the talk’, but unable to ‘walk the walk’.

Other conditions, such as autism, Prader-Willi syndrome, obsessive compulsive disorder and hoarding, can also be associated with executive functioning difficulties.

The term ‘executive capacity’ is sometimes used alongside executive functioning. The concept of executive capacity is normally used as a way of translating executive functioning for the specific purposes of the Mental Capacity Act 2005 (MCA). In other words, executive capacity is a way of defining how executive functioning can be understood in the context of decision-making capacity.

Terms such as ‘executive functioning’ and ‘executive capacity’ do not appear in the MCA itself, nor do they currently appear in the code of practice. However, the courts have recognised these concepts and referred to ‘executive functioning’ and ‘executive dysfunction’ in the relevant case law.

What does the MCA code of practice say?

The MCA is a vital aspect of the legal framework for social care professionals working with individuals experiencing executive functioning difficulties. Applied correctly, the MCA should empower and protect such individuals.

But applying the MCA is often not straightforward, not least because practitioners are faced with making difficult determinations in situations where an individual’s actions may be divorced from their understanding.

The MCA code of practice gives guidance on using or weighing information as part of the decision-making process. It states in paragraphs 4.21-4.22 that: “For someone to have capacity, they must have the ability to weigh up information and use it to arrive at a decision. Sometimes people can understand information but an impairment or disturbance stops them using it. In other cases, the impairment or disturbance leads to a person making a specific decision without understanding or using the information they have been given.

“For example, a person with the eating disorder anorexia nervosa may understand information about the consequences of not eating. But their compulsion not to eat might be too strong for them to ignore. Some people who have serious brain damage might make impulsive decisions regardless of information they have been given or their understanding of it.”

While the code does not use the term executive functioning, this is clearly what it has in mind in these paragraphs.

Key points for practitioners

When it comes to executive capacity, there are a number of key messages that can be drawn from case law. For instance, when it comes to capacity assessments:

  • Always consider whether practicable support can be provided to someone experiencing difficulties with their executive functioning to enable them to make the decision in question.
  • Difficulty with executive functioning is not, by itself, evidence of a lack of capacity.
  • Be aware that people with executive functioning difficulties may overestimate their skills and abilities and underestimate their need for care and support.
  • You may need to consider not just what the person tells you about how they would make an informed decision but also whether this decision will actually be implemented in practice.
  • Look for evidence of past behaviour and whether this demonstrates an inability to put into effect their stated intention.
  • You may need to consider whether the person understands that there is a mismatch between what they say they will do and how they act when faced by concrete situations.
  • Consultation with others, such as family, friends and involved professionals, may be an important source of information about the person’s ability to carry out their decision.
  • Clinical input may be required when assessing executive functioning, for example, from a clinical psychologist.

Also, when it comes to best interests decisions:

  • Remember that the person’s wishes and feelings often carry significant weight in the determination of best interests.
  • Think about how risks might be managed in a safe way, rather than seeking to remove all risks at all costs.
  • Where relevant, it is permissible to take into account risks of harm to others when making the best interests decisions.

Assessing and working with people with executive functioning difficulties can be challenging for social care professionals. The individual may be engaging in behaviour which places them at risk of harm, and professionals are often faced with obstacles which make assessments very difficult to complete. So, it is very important to understand how the MCA should be applied in such cases and to apply that understanding to everyday practice.

If you have a Community Care Inform Adults licence, log in to access the full guide. There, you can read more on the statutory framework, recording decisions and key case law.

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5 Responses to Executive functioning and the Mental Capacity Act 2005: points for practice

  1. Alec Fraher December 19, 2023 at 2:38 pm #

    Trauma, and especially when it’s untreated, has a massive impact on the limbic system or executive brain function ~ there’s much more insight needed within the practice guidance before we start to think that we’re all neurobiologists ~ using the language of the neuroscience should initself be tackled and be made more accessible.

    For example, traumatic invalidation is and can be masked by external compounding systemic and societal invalidation inherent in, say, patriarchy ~ and more topically being neurotypical ratherthan neuro-diverse ~ it’s about power and how and when it’s used to stop someone’s being themselves warts and all.

    Essentially getting a better handle on neuroplasticity is a crucial aspect of getting to grips with what an executive brain function is and does ~ the treatment of trauma and being trauma-informed ain’t simply about the learning but how we adapt to learning differently; behavioural activation is a key aspect of this

    Crucially the treatment of trauma most be seen as an iterative and separated aspect of treatment for any other underlying condition ~ it’s a highly skilled aspect of psychotherapy not a substitute for it.

    Capacity decisions are peculiar and specific to how trauma tolerances are built up over time, and can change in time and be contextual as well as and not to be confused with the impact of what is known about autistic spectrum disorders.

    Treatment for one condition is not treatment for the other ~ compassion based work is a must do.

  2. David December 22, 2023 at 11:14 am #

    Please can you provide references to the case law? I hear very polarised opinions about the concept executive capacity and am not convinced personally it is helpful. Use and weigh is enough? My concern arises from the way people saying but not doing is a very human habit. I know that in certain circumstances of mental capacity it is relevant but it’s sort of become a bit of a catch all I sort of fear.

    The references would be really useful


    • Dave January 5, 2024 at 10:43 am #

      Use and weigh up – mighty powerful phrase. I am sure many can relate to knowing and doing/saying one thing and doing another -how many of us have told our GPs “oh yes, I don’t smoke, just have a small sherry at Xmas and go to gym everyday LOL

  3. Not My Real Name January 5, 2024 at 4:18 pm #

    Where is the case law here, please? The anorexia example is problematic as it suggests that anyone who has an addiction and denies it could lack mental capacity, but there is no case law to back up such an interpretation. The same could apply to anyone who makes unwise decisions that they are unable to explain. My understanding is that you have to relate the impaired capacity to the unwise decision in order to evidence lack of capacity, such as a lack of awareness of the risk or the consequences of the risk. To simply say that their inability to ‘walk the walk’ shows lack of capacity is going beyond the law as I understand it.

  4. Jambon January 13, 2024 at 8:41 am #

    These articles are helpful and I don’t doubt the need for for learning, but as often happens in social work there are obvious omissions not looking at bigger picture.

    1- the article rightly points out different notions of executive function and idea of executive capacity thst have developed. Important to do irrespective of views on validity of the concept of executive capacity and the need to demonstrate the causitive nexus. Such is often in the real of clinical psychologists of whatever background. Unless in a very narrow pathway and in the system hie readily available is such either in community or even in inpatient admission where there may not be clear need? Social work has lots to do but the terrible state of mh and neuro services can’t be overlooked and often presented as window dressing when it should be a national scandal.

    2- how do we draw the line and keep ourselves aware of the risk of moving to assumption that impairmemt in executive function automatically means unable to use and weigh info. Really hard stuff and before this the work of alcohol change really made me think about this and whether addiction itself is an impairment that impacts on ability to use and weigh and actually where that line is. Highly complex stuff which seems to still. Be emerging legally and clinically!