Capacity, best interests and coercive control
Mental capacity
Mental capacity means being able to make a particular decision for yourself at the time it needs to be made. In England and Wales the law on this is the Mental Capacity Act 2005, which applies to people aged 16 and over.
Capacity matters in coercive control cases because the law responds differently depending on whether a person lacks capacity or has capacity but is being dominated by someone else.
The starting point
Everyone is assumed to have capacity to make a particular decision, unless it’s shown they don’t.
People must be given all practical help to make a decision before anyone concludes they lack capacity to make a particular decision.
Making an unwise decision doesn’t mean someone lacks capacity. People are allowed to make choices others disagree with. However, an unwise decision isn’t a sign that the person has capacity!
If someone lacks capacity, decisions made for them must be in their “best interests”.
Best interests decisions should be the least restrictive of the person’s rights and freedoms to effectively achieve the purpose of making a decision. This doesn’t mean that the least restrictive option is necessarily in the person’s best interests.
How capacity is assessed
A person lacks capacity for a decision if three things are true.
First – they’re unable to do one or more of the following:
understand the information relevant to the decision
retain it long enough to make the decision
use or weigh that information as part of making the decision
communicate their decision, by any means
Second - they have an impairment of, or disturbance in the functioning of, their mind or brain. This could be dementia, a learning disability, a brain injury or a mental illness.
Third – they are unable to make the decision because of that impairment. Another way of saying this is that the impairment causes the person to be unable to make the decision.
Capacity is specific to the decision and the moment. Someone may be able to decide what to buy in a coffee shop, but not manage a property sale. It can also change over time, and a person’s capacity can vary from day to day: we call this “fluctuating capacity”.
Who decides?
Usually the person with the most day-to-day involvement, such as a carer, nurse, doctor or social worker, assesses capacity. For serious or disputed decisions, a specialist may be involved. If a person can’t be helped to decide, the decision-maker must act in their best interests. That means considering their past and present wishes, feelings, beliefs and values, and consulting people close to them.
If there a disagreement about (i) whether a person age 16 or over has or lacks capacity to make a decision about something, or (ii) what is in the best interests of a person age 16 or over who lacks capacity to make a decision about something, then the only body capable of resolving that dispute is the Court of Protection.
Best interests
If someone lacks capacity, decisions made for them must be in their “best interests”. This requires the decisonmaker to consider all relevant circumstances, including the person’s past and present wishes and feelings, values and beliefs; and the views of others who care for for the person, or are interested in their.
Best interests decisions should be the least restrictive of the person’s rights and freedoms to effectively achieve the purpose of making a decision. This doesn’t mean that the least restrictive option is necessarily in the person’s best interests.
Capacity and coercive control
Coercive control can make it hard to know what someone really wants. There are two main situations:
The person lacks capacity. The Court of Protection can make decisions for them in their best interests, and can restrict the contact of someone who is harming them.
The person has capacity, but their choices are overborne by someone else. The court’s inherent jurisdiction can protect them even though they can make decisions in law.
Reassuring answers from the person don’t settle the question. A calm conversation with the controlling person in the room may tell you little.
If you’re worried about someone
It can be difficult to decide what to do if you’re worried that someone may be a victim of coercive control. Here are some steps you could take:
Raise your concern with adult social care (at the local authority, known as “the Council”). You don’t need to prove anything.
Ask for the person to be seen alone, with any support they need.
Keep a record of what you notice, with dates.
If you’re asked to help with a legal decision for someone, such as a Lasting Power of Attorney or a will, check that they understand what it means, and chose it freely.