A simple definition for parenting capacity that needs to be applied when making a decision and conducting an assessment is: "the ability to parent in a good enough manner long term" (Conley, 2003)
According to a survey of practitioners' perceptions of 'good enough' parenting contained four elements, these were:
- meeting children's health and developmental needs;
- putting children's needs first;
- providing routine and consistent care;
- acknowledging problems and engaging with support services.
From the same survey, risky parenting was associated with:
- neglecting basic needs; putting adults' needs first;
- chaos and lack of routine;
- and an unwillingness to engage with support services.
Gillick Competency and Fraser Guidelines
Children and young people’s views should always be sought. As children develop and mature, they will generally become more able to participate in decision-making and start to make some decisions about their own care and support even before the age of 16. Specialised legal or safeguarding advice should be sought in complex situations relating to consent and young people and information sharing.
In cases where children are considered to have the necessary maturity and understanding to make the decision in question for themselves, they are often referred to as being ‘Gillick competent’. Where children are Gillick competent and have the capacity to make decisions their views should be respected in the same way as an adult’s request for confidentiality. This means that confidential information may only be disclosed without the child or young person’s consent if this can be justified, for example, there is a legal requirement to do so or there is reasonable cause to suspect that the child or young person is suffering, or at risk of suffering, significant harm.
Mental Capacity Act 2005
(for Codes of Practice click here)
All people aged 16 and over, in England and Wales, are presumed, in law, to have the capacity (ability) to make decisions in their life, unless you establish a reasonable belief that they lack the mental capacity to do so.
The two-stage functional test of capacity
In order to decide whether an individual lacks the capacity to make a particular decision, you must answer two questions:
Stage 1: Is there an impairment of or disturbance in the functioning of a person’s mind or brain?
This impairment/disturbance could be anything from dementia, brain injury, learning difficulty or a mental disorder, to someone being drunk, on drugs, or having a UTI which is causing them to be confused.
When you look at the ‘Diagnostic stage’ (Stage 1) you should be recording what the impairment/disturbance is, how you know, when it was diagnosed, who diagnosed it.
Stage 2: Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
This is also called the ‘Functional Test’ and although you are not ‘testing’ the person, you are providing them with information and establishing a reasonable belief on the balance of probabilities that they either can, or cannot do the following: -
- Understand the information given to them relevant to the decision you are supporting them to make – record how you gave the information, the questions you asked and the responses you got.
- Retain that information long enough to be able to make that particular decision – consider how you are helping the person retain the information i.e. have they a pen and paper to take notes they can refer to?
- Use or Weigh the information available to make that decision (don’t confuse this with Understand, part of it is seeing if the person can weigh up the pro’s and con’s or advantages and disadvantages of each option or of making/not making the decision.)
- Communicate – however they communicate, they are communicating. It doesn’t matter if you can’t understand what they are trying to get across or what they say has nothing to do with the decision; they are able to communicate. Really the only time you would say the person is not able to communicate is if they are unconscious or maybe if they have Locked-in Syndrome
If you have a reasonable belief that the person is unable to do one of these four stages then the person lacks the ability to make this particular decision.
Points to remember
- You are checking to see if the person can Understand, Retain and Use/Weigh the ‘Salient’ (key) points of the decision. So you need to know what these are before supporting the person to make the decision and record them on your capacity assessment
- Principle 2 of the Mental Capacity Act says that you need to take all practicable steps to enable the person to make the decision. Therefore, you need to evidence all of the steps you took ensuring that you have tried all the relevant methods without success.
- Practicable steps would also include involving family, friends, carers or other professionals, ensuring they are there in a supportive role and not answering the questions on behalf of the person in question
- If you believe the person lacks the mental capacity to make this decision then you need to record your evidence as to how you have come to that reasonable belief on the balance of probabilities.
- A person’s ability to make decisions in their life can change, or fluctuate, depending on their impairment or disturbance of the mind. Therefore, you must remember that a capacity assessment is time and decision specific. In other words can the person make this particular decision at this particular time?
Who Assesses Capacity?
The Mental Capacity Act Code of Practice says that the decision maker is the person who is proposing to take an action in relation to the care or treatment of an adult who lacks capacity, or is contemplating making a decision on behalf of that person.
So, if you are supporting someone to make a decision within your field of expertise, then you would be the best placed individual to see if the person in question lacked mental capacity. So, for example, a GP would be assessing for capacity around medication; a Surgeon around consent to surgery; a Dentist assesses for dental treatment; an Adult Social Worker decisions around finance, care and accommodation; a Children’s Social Worker decisions around a parent signing a section 20 agreement under the Children’s Act.
Lack of Capacity
When a person has been assessed as lacking capacity to make a particular decision, interventions can be made in the person’s best interests using the Best Interests Checklist as set out in the MCA Code of Practice (for further details click here). In urgent situations where the person lacks capacity and there is imminent, serious risk/danger to the person, an emergency application can be made to the Court of Protection.
It is worth considering that even when a person has capacity but is an Adult at Risk and there is serious risk/danger to the person, the relevant agency could approach the High Court for appropriate legal authority to intervene.