Behind the cloak of competence: brain injury and mental capacity legislation
| Published date | 01 August 2019 |
| DOI | https://doi.org/10.1108/JAP-02-2019-0007 |
| Pages | 201-218 |
| Date | 01 August 2019 |
| Author | Sophie Moore,Rebecca Wotus,Alyson Norman,Mark Holloway,Jackie Dean |
| Subject Matter | Health & social care,Vulnerable groups,Adult protection,Safeguarding,Sociology,Sociology of the family,Abuse |
Behind the cloak of competence: brain
injury and mental capacity legislation
Sophie Moore, Rebecca Wotus, Alyson Norman, Mark Holloway and Jackie Dean
Abstract
Purpose –Brain Injury Case Managers (BICMs) work closely with individuals with Acquired Brain Injury (ABI),
assessing needs, structuring rehabilitation interventions and providing support, and have significant
experience of clients with impairments to decision making. The purpose of this paper is to explore the
application of the Mental Capacity Act (MCA) and its guidance when applied to ABI survivors. This research
aimed to: first, highlight potential conflicts or tensions that application of the MCA might pose, and second,
identify approaches to mitigate the problems of the MCA and capacity assessments with ABI survivors. It is
hoped that this will support improvements in the services offered.
Design/methodology/approach –Using a mixed method approach, 93 BICMs responded to an online
questionnaire about decision making following ABI. Of these, 12 BICMs agreed to take part in a follow-up
semi-structured telephone interview.
Findings –The data revealed four main themes: disagreements with other professionals, hidden disabilities,
vulnerability in the community and implementation of the MCA and capacity assessments.
Practical implications –The findings highlight the need for changes to the way mental capacity
assessments are conducted and the need for training for professionals in the hidden effects of ABI.
Originality/value –Limited research exists on potential limitations of the application of the MCA for
individuals with an ABI. This paper provides much needed research on the difficulties surrounding mental
capacity and ABI.
Keywords Brain injury, Social care, Mental capacity, Case management, Executive impairment,
Lack of insight
Paper type Research paper
Introduction
Incidence of ABI
The incidence of Acquired Brain Injury (ABI) is a significant concern with 348,453 admissions to
hospitals due to ABI with the UK in 2016–2017 (954 admissions daily; Headway, 2018). The
most commonly reported causes of ABI in the UK are bleeds to the brain, infections, or traumatic
brain injuries caused by falls, assaults and road traffic accidents (Rutland-Brown et al., 2006).
The consequences experienced by survivors can have a significant impact on their day-to-day
living and often requires long-term care and support (Khan et al., 2003).
Impact of ABI
ABI is one of the leading causes of disability within the UK (Fleminger and Ponsford, 2005) with
individuals experiencing changes emotionally, cognitively and behaviourally (Yates et al., 2006).
Some may experience a range of physical difficulties, including loss of coordination, speech
difficulties, fatigue and sexual problems (Headway, 2018). However, for many individuals there
will be no physical indication of impairment (Higham and Phelps, 1998). Cognitive difficulties can
include memory impairment (Mathias and Mansfield, 2005), reduced processing speed
(Felmingham et al., 2004), executive impairment (Chan et al., 2008) and attentional deficits
(Rohling et al., 2009), and can be seen as a “silent epidemic”(Langlois et al., 2006).
Received 14 February 2019
Revised 12 April 2019
20 May 2019
Accepted 28 May 2019
Special thanks to the British
Association of Brain Injury Case
Managers (BABICM) for
supporting this research study
and enabling recruitment through
their membership.
Sophie Moore, Rebecca Wotus
and Alyson Norman are all
based at the School of
Psychology, University of
Plymouth, Plymouth, UK.
Mark Holloway is based at
Head First Assessment and
Case Management Ltd,
Cranbrook, UK.
Jackie Dean is based at N-Able
Services, Birkenhead, UK.
DOI 10.1108/JAP-02-2019-0007 VOL. 21 NO. 4 2019, pp. 201-218, © Emerald Publishing Limited, ISSN 1466-8203
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THE JOURNAL OF ADULT PROTECTION
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Executive functioning incorporates skills such as planning, cognitive flexibility, multi-tasking,
initiating behaviour, inhibition, controlling emotions and learning social “rules”(Gioia et al., 2008).
Executive dysfunction is often invisible and therefore not easily assess ed with formal
neuropsychological assessment (Parsons et al., 2017; Manchester et al., 2004). It can have a
significant impact on functioning (Rabinowitz and Levin, 2014), and has been linked to risk-taking
behaviours, such as substance and alcohol misuse (Parry-Jones et al., 2004; Weil et al., 2016),
criminal activity (Holloway, 2014) and suicidality (Simpson and Tate, 2002; Homaifar et al., 2012).
Mental capacity act (MCA)
The Mental Capacity Act (MCA) is a legal framework to guide the assessment of an individual’s
capacity to make decisions. Capacity can be affected by an individual’s inability to understand
information pertaining to decision making, their ability to retain information, their ability to weigh up
and use that information and their ability to communicate. Capacity can also fluctuate over time. A
person is considered to lack capacity if they are unable to make decisions due to an impairment
or disturbance in the functioning of the mind or brain (Department of Health, 2005). There are five
statutory principles to the MCA; a person must be assumed to have capacity unless it is proven
otherwise, must not be treated as unable to make a decision unless all practicable steps have
been made to help and must not be treated as lacking capacity merely based on unwise
decisions. The final principles state that those lacking capacity should have decisions made in
their best interests and that before a decision is made, it must be ensured that the purpose for
which it is made cannot be achieved in a way that is less restrictive to their rights.
Professionals, researchers and family members have argued that the act does not meet the needs of
individuals with a range of different conditions, including ABI (House of Lords Select Committeeon
the Mental Capacity Act 2005, 2014). For example, the link between executive dysfunction and
increased risk-taking behaviours brings the capacity to make decision regarding lifestyle choices,
welfare and health into question. There is limited research and guidance on the MCA’s description of
“unwisedecisions”and whether this constitutes these kinds of risk-taking behaviours. The House of
with the MCA and its implementation. Evidence provided to the Select Committee related to ABI
identified the impact lack of insight has upon decision making and upon the assessment of mental
capacity. Insight is an individual’s partial, or whole, awareness of changes in their abilities, functioning
and emotional responses secondary to their injury (Holloway and Fyson, 2016; Ownsworth et al.,
2006; Prigitano, 2005). An ABI survivor may be able to describe their difficulties (intellectual
awareness) and even acknowledge strategies to deal with these. However this knowledge may not
manifest or affect behaviour within real-life settings (Holloway and Fyson, 2016).
The functional test of capacity identified four areas in which capacity may be impaired, through an
inability to understand information provided, retain information long enough to make a decision,
weigh up information available to make the decision and communicate their decision. A lack of
insight affects the individual’s ability to use relevant information and weigh it up in order to make a
decision (Prigitano, 2005).
Although it is a salient effect of ABI, it is important to note that somewhat nebulously defined
concepts,such as “lack of insight”, though commonin practice and clinical discourse,are not used
within the wording of the MCA. A lack of insight into the impact of one’s brain injury does not, de
facto, equateto an individual having a lack of capacitywith regards a specific decision.It is essential
that BICMs, and others, to remain compliant with the Act and Code of Practice, relate this
perceived brain injury related difficulty to the functional tests of understanding, retaining,weighing
up and using and communicating information relevant to the decision in hand (Case, 2016). The
evidence for this islikely to come from open discussion withfamily and those working closely with
the individualwho are more likely to understand the nuancesof their ABI and the effects these have
on their decision-making capacity(Douglas and Bigby, 2018).The MCA guidance clearly highlights
the importance of including others in the assessment process (NICE, 2018).
A review of contested cases relating to mental capacity before the courts identified that of the
functional tests, it was “weighing up and using”that appeared to be the one that was most
frequently notedto be cited as the reason for perceived lack of capacity(Ruck Keene et al.,2019).
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