Learning points

• An understanding of the term ‘frontal lobe paradox’ and its importance to health and social care practice.
• When and how the Mental Capacity Act 2005 should be applied.
• The key messages to take from the limited case law available.

Contents

• Introduction
• What is the ‘frontal lobe paradox’ and what is its importance to practice?
• When should the Mental Capacity Act be applied in these situations?
• Key points for practitioners
• How should the Mental Capacity Act be applied?
• Practice case studies
• Case law
• References

In two minutes: key messages

1. Executive functioning has been described as “the ability to think, act, and solve problems, including the functions of the brain which help us learn new information, remember and retrieve the information we’ve learned in the past, and use this information to solve problems of everyday life”.
2. Executive functioning is an umbrella term that encompasses many higher level cognitive skills. One of these cognitive skills is insight/awareness and a deficit in these parts of this skill in particular means that someone can give what appears to be coherent answers to questions, but it is clear from their actions that they are unable to put into effect the intentions expressed in those answers.
3. The terms ‘executive functioning’ and ‘executive capacity’ do not appear in the Mental Capacity Act, nor do they currently appear in the code of practice. However, the courts have recognised these concepts and refer to both in the relevant case law.
4. With the functional test of capacity, the most relevant functional element when it comes to executive functioning is the ability to use or weigh the information. Both the current MCA code of practice and the draft code clearly link executive functioning with the ability to use and weigh the relevant information. The courts have also confirmed that “understanding” can be relevant to executive functioning.
5. Case law highlights the need to probe when undertaking a capacity assessment. Those with executive functioning difficulties may give the appearance of fully understanding the relevant issues and being able to apply that understanding to their decision making. This should not always be taken at face value and evidence may be needed of the person’s ability to put into effect their stated intentions.
6. Bear in mind that as well as an interview-style assessment, real-world observation of the person’s decision making may be required to get a full picture of capacity, as well as evidence from a range of sources such as family, friends and other involved professionals.
7. A one-off assessment may not be sufficient; it may be necessary to demonstrate evidence of repeated occasions of an inability to bring to mind relevant information at the point that it was necessary.
8. Always consider whether practicable support can be provided to someone experiencing difficulties with their executive functioning to enable them to make the decision in question.

Please note: in some places in this guide a distinction is drawn between the first part of the capacity assessment – referred to as the ‘interview’ where the practitioner talks to the person to hear their wishes and views – and other parts of the assessment when the practitioner is gathering/triangulating information from other sources, for example, observations, family, reports etc.