Activity – Capacity Assessing case study feedback

Here are some thoughts about the case study. We shall look through the various elements of capacity that we have considered and see how these feature. What do they tell us?  

Presumption of capacity?

• Has the position started with a presumption of capacity?
• Maybe yes, “Paul was aware that Andy would need someone to manage things for him so contacted a solicitor to get power of attorney for Andy”
• Maybe no, he has been presumed incapable of understanding his mortgage predicament.
• There is evidence of decision specific capacity consideration, as things are being treated as distinct items.

Was the guardianship right in the first place, did the doctor assess the right things?

• The initial approach was for a PoA, the solicitor got a medical opinion on Andy’s capacity [for what?] which assessed Andy as incapable of “managing his own affairs”, which seemed to then lead to the appointment of Paul as financial and welfare guardian.
• On the facts we have we don’t know what the doctor was asked to assess, what s/he did assess and what assessment was undertaken. Was it a test of cognitive ability as opposed to capacity?

Capable of Making Decisions?

• We shall look at this more in the next video class; but there are suggestions that he is capable of making certain decisions at least.

Understanding the Decision?

• Eating, he seems to understand the implication of his over-eating, capable therefore of making a decision?
• Free to make an unwise decision – we will look at this in the next video class.
• Has he been given the information to make decisions? has there been a conversation about his spending? Instead of Paul going straight to ‘controlling the money’ is there any compromise? With the right information could Andy understand the need to regulate his spending
• Re. taking his phone off him because he’s using it inappropriately – for gambling. Again, is there any evidence that he has been given information to understand the situation? Gambling – could a limit be placed on sites as opposed to taking his phone away? Protection v autonomy 
• He doesn’t appear to have been given information about the mortgage predicament. Would this help him understand the spending issue?
• What part does insight play? His ability to weigh up pros and cons and recognise risk? We will cover these more in the next video class.

Able to retain memory?

• Apparently so, he’s consistent with what he’s telling his friends.

Capable of communicating his views?

• Yes

Capable of acting?

• He may be incapable of acting as Paul appears to be very controlling, albeit with the best intention.
• Is there undue pressure at play here?

Anything else I need to consider?

• He had a head injury, so there is potential for significant recovery over the period of time involved.
• Is there an Adult Support and Protection report required? Is Andy at risk of harm?
• The AWI Principles apply – so is keeping the guardianship ongoing the least restrictive alternative? Andy may now be assessed capable of the PoA that he was considered incapable of earlier.
• We know what his wishes are on this, have these been sufficiently considered and respected?
• Are the decisions being made for his benefit?

This list will not be exhaustive, you may well have other things.  On limited facts, as we have here, we are making assumptions but it is an example of how you can use the elements of the capacity definition to consider a person’s capacity status.