Executive capacity transcript

Transcript of recording – Executive Capacity

Slide 1 [00:35]

Welcome.

My name is Mike Ward and I’m an independent author of Safeguarding Adult Reviews, including a couple of SARS in North Yorkshire, including the Elaine SAR, and I’m going to talk today about the concept of executive capacity.

Slide 2 [01:02]

Now this is a controversial piece of terminology, because it’s not in the Mental Capacity Act or the code of practice, but it is a useful shorthand to a particular approach to assessing capacity and it is something that is becoming more and more widely accepted.

Now, if we’re going to understand it, it’s probably best to start with a case study, and this is Pauline. She’s 67 years old and has lived alone since the death of her partner five years previously. She always used to enjoy a drink with her partner, but certainly over the last few years her drinking has increased greatly and she’s now drinking at least 2 bottles of wine a day and refusing support.

3 safeguarding concerns have been raised by her housing association, because neighbours have found her in the street in her nightwear and professionals believe that people that she regards as friends are buying her alcohol and actually exploiting her financially.

Slide 3 [02:15]

On each of the occasions that people raise these concerns with her, she declined support and denies that there is any problem and says that she can address them herself and she will refer herself to the alcohol service. But, that doesn’t happen and a recent home visit identified that her flat is now unkempt and not fit for her to be living in. Dried faeces on the carpet, bowls around the house with vomit in. There were also many empty wine bottles strewn around the flat.

Slide 4 [02:52]
Now, if we’re going to work with people like Pauline, then we do need, as professionals, a good understanding of legal structures that can support and manage what are often very challenging clients.

Slide 5 [03:08]

What we’re looking at here is the importance in mental capacity assessment of considering whether people can put decisions into effect, i.e., Can they execute a decision? This has become a familiar theme in Safeguarding Adult Reviews nationally and locally.

The Elaine SAR that I wrote has recommended that this concept be included in mental capacity training locally.

Slide 6 [03:40]

Now, if we’re going to use the Mental Capacity Act appropriately, and if we’re going to protect people like Pauline, I think we do need as professionals to think about our attitudes. It’s very easy when faced with people who are self-neglecting, but denying a problem, to simply see them as choosing to live like this, to simply see them as making a lifestyle choice, but we need to challenge that idea.

Slide 7 [04:14]
These are not just unwise decisions. The reality is that someone like Pauline faces very real barriers to change and very real barriers to engagement with services.

Slide 8 [04:28]
For example, she may be at the centre of an almost perfect storm of physical things that are going on, which become barriers to change. For example, there will be depression, there may be cognitive impairment and over the last five years or so, there is a growing concern about the pattern and frequency of cognitive impairment amongst people who are subject to Safeguarding Adult Reviews and a sense that this is under recognised.

There may be physical problems that impact on her engagement, tiredness, low energy levels as a result of liver damage. Confusion as well from liver damage, but also from urinary tract infections and pancreatitis, sleep disorders which both make you tired, make you demotivated, but also impact in the long term on cognitive damage.

There is a similar double whammy with poor nutrition, which also contributes to depression and to cognitive damage in the long term.

Some of these individuals may actually have probably mild to moderate learning disabilities from things like foetal alcohol damage. During the time in in utero when they were were growing developing because of the mother’s drinking. And of course, someone like Pauline also is dependent on alcohol, which can be yet another barrier to change.

Slide 9 [06:18]

Alongside that there will be an array of social, emotional, psychological barriers to change. I met a man who told me that he didn’t go to services because he thought he smelt. People may have had previous negative experience with services, which makes them feel they won’t be welcomed back. They may be unrealistic targets being set by services. You’ve got to turn up on time. You’ve got to turn up sober. They may be fearful of things like failure itself, fearful of change. There may be money problems, lack of a clock, watch, diary or calendar. Peer pressure, family pressure, domestic abuse, coercive control, and indeed cuckooing. And there may be emotional, physical financial problems in terms of actually accessing services.

Slide 10 [07:24]

Beyond that, there are issues associated with stigma and prejudice.

Many of these self-neglecting complex clients will experience high levels of stigma and prejudice from the public and sometimes from professionals.

Slide 11 [07:43]

It is easy to view people who self-neglect as simply choosing to live like this or liking to live in chaotic and dirty settings. But in reality, the situation is much more complex than that. This client group face very real barriers to change and are not simply choosing this lifestyle.

Slide 12 [08:10]
Now, having said that as a background, we do need to start thinking about how we can use legal frameworks with this client group.

Slide 13 [08:23]

And in this context, we’re obviously talking about things like the Care Act, the Mental Health Act, the Human Rights Act. Possibly antisocial behaviour powers. Possibly probation orders. Possibly environmental health legislation.

Slide 14 [08:45]

But our focus here is the Mental Capacity Act.

Slide 15 [08:48]

And as I hope you know, the act provides a legal framework that helps people, usually professionals, to determine whether they can take a decision on somebody else’s behalf,

Slide 16 [09:03]

because that person lacks the capacity to take that particular decision at the time the decision or the action needs to be taken.

Slide 17 [09:15]
So the key question for us is this.
Are there circumstances under which someone like Pauline lacks the capacity to make decisions about, for example, their care, their safety, their living conditions?

Slide 18 [09:34]
And to answer that question, we need to use the mental capacity test.
And at the heart of the test, there are still two key questions. One of those is, does the person have an impairment of or a disturbance in the functioning of their mind or brain?

That’s not necessarily a barrier with this client group.

Slide 19 [10:00]
More challenging may be the second key element.
Is the person able to make a specific decision when they need to?
And the person is unable to make a decision if they can’t understand information, retain information or use away information or communicate their decision.
Now you will readily understand that there will be some people who are so cognitively damaged that they will find it hard to do one or other of those first two things.

But for many of these complex clients, the real question and the real criterion we need to consider is whether they can use or weigh information.
Often they will understand and remember information about how what they are doing is damaging them, but they can’t use that information to change their behaviour, particularly perhaps because of compulsion associated with conditions.
And that statement that people can’t use or weigh information because of compulsion associated with a condition gives us a framework for thinking about capacity.

Slide 20 [11:25]
And we’re supported in this by the code of practice, which at Chapter 4, Paragraph 22 gives as an example someone with anorexia. Who they say may understand information about the consequences of not eating, but their compulsion not to eat might be too strong to ignore, and you can see how that might apply to people with, for example, alcohol problems, but also, for example, people with hoarding behaviours.

Slide 21 [12:02]
But the centrepiece of this conversation today is about executive function or executive capacity.

Now, as I’ve indicated, this is a concept that we need to treat with care, because those phrases are not found in the act, nor in the current code of practice. But, the draft code of practice does cover executive function and other documents, national and regional, local documents do talk about this issue. But, most importantly, it’s coming out in Safeguarding Adult Review after Safeguarding Adult Review.
Most notably perhaps in what is known as the Carol SAR from teeswide.
Carol was a woman with a chronic alcohol problem who was murdered by two teenage girls. It’s quite a high profile tragedy and the safeguarding adult review talked about the use of executive capacity in this context. It’s said that where the individual has addictive or compulsive behaviours it’s important when assessing capacity to consider not just whether someone can take or make a decision, but also whether they can put that decision into effect. Executive capacity.

And the reality is that with people like Carol, people like Pauline, people with significant addictions, they can often, to put it crudely, talk the talk. What they can’t do is walk the walk. They can tell you what they’re going to do when they get back in the community, but when they get there they don’t put it into effect and repeated failures to execute decisions must raise questions about their capacity.

Slide 22 [14:25]
And that is supported again by the code of practise in Chapter 4, paragraph 30, where it says that it’s useful to have a historical or longitude approach to assessment, which looks back over past decisions which haven’t worked out and which have put someone at risk of harm or left other people at risk of harm. We need that historical approach in our assessment.

Slide 23 [15:00]
We have legal judgments that support this. For example, a local authority versus AW addresses this.

Slide 24 [15:10]

But it’s important also to think about this because of what is known as the frontal lobe paradox. This goes back to the issue of head injury acquired brain injury. Now that’s common independent drinkers, but acquired brain injury can occur for all sorts of other reasons. And the frontal lobe paradox is the problem that people with frontal lobe damage may not have damage to their memory or their communication skills.

What they have damage to is their executive function and their impulse control, and therefore again, at assessment they can appear coherent. Back in the community, because of that executive function and impulse control problem, they can’t put things into action.

Slide 25 [16:10]
Now, that’s all very well. The question is, how can practitioners put this into action in their day-to-day work?

Inevitably, mental capacity decisions are very individual, so this will vary, but I think 3 points are particularly useful.

Slide 26 [16:32]
First of all, as we said earlier, talking about paragraph 4.30 of the code of practice, are you considering the person’s history of decision making? Are you looking back and thinking about whether there are past decisions that have not worked out for this person?

Slide 27 [16:54]
Secondly, are you considering whether the person can both show you that they can take a decision as well as tell you that they can take a decision?

And I think what’s useful here is guidance from 39 Essex Chambers, which is the leading barristers chambers on mental capacity, which states that you can legitimately conclude that a person lacks capacity if they cannot understand, or use and weigh the fact that they cannot implement in practice what they say in assessment they will do.

To get to that point, you’re probably going to need multiple meetings with the person to look at things over a period of time.

Slide 28 [17:50]
Thirdly, the assessment of executive capacity as we’re calling it, will be greatly assisted by triangulating it with information about that person from colleagues from other agencies who know the person.

Again, that’s going to take time. It’s going to require professional discussion, particularly where there is this context of repeated capacity decisions about the same person.

Slide 29 [18:22]
Now, let’s not pretend that this is simple. It’s not. This is a complex area of decision making, and if you are in any doubt, those doubts should be escalated to managers, to legal departments and ultimately to the court.

Slide 30 [18:41]
But let’s go back to Pauline. So in this situation a thorough assessment of her capacity to care for herself and keep herself safe is carried out. This includes a discussion with other practitioners who are involved with her. It looks past decisions she has taken and not executed and is based on multiple visits to her to discuss what she wants to do about the situation and then to see if she’s followed through on those decisions.

She’s telling you and showing you.

And this process identifies that although she can apparently take a decision to protect herself or to care for herself, she is repeatedly unable to put those decisions into effect, and therefore more assertive action is required by agencies. A care plan is developed involving blitz cleaning of the flat. Assertive outreach by the local alcohol service and ultimately a recognition that she may require residential care.

Slide 31 [19:53]
Now I’ve added in at the end here some further reading on this. There are links in the slides to these documents.

Slide 32 [20:03]

I would also flag up a document that I co-wrote with Professor Michael Preston-Shoot on using legal powers with dependent drinkers.

Slide 33 [20:14]

And the link to that is in there.

Slide 33 [20:17]

With that, folks, I would like to thank you for listening and I hope you find this brief recording very useful. Thank you.