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This is a question we come across a lot in both the acute and community setting.
So, first things first, what do we mean by an unwise decision? This relates the Mental Capacity Act’s (2005) third principle, “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.” Although the Act does not offer an exact definition of an unwise decision, Tim Farmer offers a rather good one in his book ‘Grandpa on a Skateboard’:
“An unwise decision is basically a decision that someone else arrives at that is different from the one you would make based on the same evidence.”
There are two key things we look for when assessing whether a person’s decision is unwise:
• a logical and consistent series of steps in their thought process that takes them, step by step, from the evidence to their outcome; and
• their ability to weigh up the risks involved in the decision that is being made, including the consequences of not making that particular decision.
So, now we have a definition, how do we identify one in an assessment?
Often, the answer will be determined by how well the practitioner has prepared for the assessment and how well they have prepared the patient. A mental capacity assessment can sometimes feel like a course of hurdles with each hurdle representing a different challenge that the practitioner and/or the patient needs to work through and overcome.
For the patient, looking down that line of barriers can be an intimidating view. and often the fear of ‘failing’ or that someone will try and trip them up can change how they engage in the process. As the practitioner, we are in danger of becoming so focused on their overall decision – that finish line - that we forget we need to focus on running alongside the patient and looking at how they are managing each hurdle (and thinking about how we overcome our own)!
How can we approach this then? First and foremost, preparation is key. The better we can plan for the course, the less likely we are to have a false start, fall at the first hurdle or be thrown off course entirely. There will always be the unexpected obstacle to overcome - that is the nature of this work - but by setting ourselves up correctly these become much more manageable. By doing this, we allow ourselves more time to focus on the detail of why the patient has tackled each hurdle as they have and what skills / abilities they are utilising to do this i.e. to determine if they are making an unwise decision or an incapacitous decision.
So, my greatest advice when it comes to considering unwise decisions is to go back to the STARTLINE.
Specify the decision - determine what decision needs to me made now and get as specific as possible.
Threshold of understanding – before the assessment, decide what are the salient factors they need to understand, retain and weigh up in order to make this decision. Look at whether this threshold has been determined before in case law; you might even find there a common law test that needs to be applied to this decision. Remember the man on the Clapham omnibus – what would the average person need to know in order to make this decision?
Actual abilities – go into the assessment with as much understanding of their communicative, physical and cognitive needs as possible so you can tailor the assessment to them. Be prepared to take supportive measures to ensure you are assessing them when they are functioning - both mentally and physically – at their best. That might mean taking a break, postponing the assessment or bringing in the right person to support them.
Review previous capacitous decision-making - is there a pattern to their decision-making that lends logic to their current decision making? Doing this will also alert you to where there might be unexpected changes in the way the patient is making decisions and give you the opportunity to explore why these characteristics might have changed.
Take time to explain all the relevant information – we cannot assess their ability to understand, retain, use and weigh up the relevant information if we are not 100% confident that all of this information has been given to them. Allow this information to be given over a reasonable period of time (relative to when the decision needs to be made) and in manageable chunks. Recognise that people’s decisions can change as they process new information, sometimes the reactionary decision the patient voices at the start of the discussion may not be their final decision! Give them time as much time as you can to work through it all.
Listen to their reasoning – it’s easy for practitioners to focus on the answers they want to hear from the patient and then switch off when they hear an answer they perceive as ‘incorrect’. This is where we need to be aware of any unconscious biases or desire to ‘parent’ the patient. So instead, consider what core values or beliefs might be underpinning their decision making. Take the time to investigate this before making your own assumptions.
Is there a causative nexus? Any concerns you have with their ability to understand, retain, use and weigh or communication the decision need to be directly caused by an impairment or disturbance to the functioning of the mind or brain. If there is no causative nexus, you cannot determine a lack of capacity.
No crystal ball – when we are looking at decisions that can be seen as ‘risky’ we must not to predict too far into the future and ask the patient to plan for any and all possibilities. Remember, we are only looking at the reasonably foreseeable consequences of the decision in question.
Evaluate you evidence – it’s easy to get swept up in an assessment and come out of it certain of the decision being unwise or not. But take a moment to review your notes of the discussion and check it against the threshold of understand you set at the beginning. How does it compare?
In conclusion, don’t jump the gun on your decision. Be critical of your own practice and how that might influence how and when you determine a decision to be unwise. Keep in mind that second principle of supported decision-making and think about what they need from you in order to make this decision for themselves, whether it’s more time, or more information. Keep a definition in your head of what an unwise decision is and evaluate the patient’s decision against that.
And always check you’ve tied your laces!
Beth Yolland-Jones
Clinical Expert