Fluctuating capacity and impulsiveness in acquired brain injury: the dilemma of “unwise” decisions under the Mental Capacity Act

Abstract

Purpose – The purpose of this paper is to examine the dilemma at the heart of nursing care – the striving for empowerment of people in nurses’ care with the responsibility to protect vulnerable adults from harm. In doing so, it argues that in difficult and borderline cases, capacity assessment is complex and ultimately based on a judgment involving interpretation, and welcomes the views of clinicians who have challenged the procedural test of capacity in the Mental Capacity Act (MCA). Design/methodology/approach – It presents an illustrative study of a person with acquired brain injury (ABI) resident in a nursing home, who had been assessed under the MCA and judged to have capacity regarding health and welfare decisions, who subsequently displayed a persistent and impulsive desire to leave the unit without thought of risk and vulnerability to herself, prompting safeguarding concerns, and a reassessment of her capacity. Findings – The paper asserts that supporting people with ABI during capacity assessments, as the MCA decrees, in a very structured way can create a false sense of “capacity”. It maintains that executive impairments in ABI, being difficult to assess in formal settings, are best undertaken over time, in real-life settings, with evidence from third parties. It welcomes the MCA’s desire to protect individual autonomy and avoid undue paternalism, through ensuring people are not deemed to lack capacity simply because they make an unwise decision. Originality/value – But it goes on to argue that in ABI it is often the fact of unwise decision making that is the prominent factor and main concern, particularly in regard to impulsive decision making. If nurses have to make a judgment as to how unwise decisions made with decision-making capacity are to be distinguished from unwise decisions made without it in people with ABI, then, the author concludes, a major area of difficulty for nurses is ascertaining when the presumption of capacity should be challenged, an area that an updated code of practice needs to clarify.