Drink and Drugs News DDN September 2018 - Page 12

LegaL Powers In safer hands? When should the Mental Capacity Act be used to make decisions on behalf of vulnerable people? Mike Ward unpicks a complicated issue I n my June article (DDN, June, page 23) I highlighted how the UK’s Mental Health Act poses problems when managing high-impact and change-resistant dependent drinkers. However, the piece of legislation which more commonly causes problems is the Mental Capacity Act (2005). Let’s start with a real-life case. Joe is a 55-year-old man who is chronically dependent on alcohol. He lives in a small housing association flat. His drinking is a problem, but the real concern is that drinking ‘friends’ are entering his flat and causing a nuisance. This causes worry to neighbours and landlords. In addition, Joe appears to be giving them money, alcohol and even his belongings. He has been warned about allowing these people into his flat, and he has spoken in his more sober moments about his desire and intention to stop it happening. However, nothing has changed, and the landlords are serving him with eviction notices. The Mental Capacity Act’s primary purpose is to provide a legal framework for professionals acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves. For example, can a paramedic take a resistant patient to hospital for treatment? Can a social worker manage the finances of someone with a learning difficulty? The act is decision-specific: it does not enable professionals to make a general statement that someone lacks capacity (although this often happens). It only allows the worker to say that a person lacks the capacity to make this particular decision at this point in time. If an adult can be assessed as lacking the capacity to make a particular decision, professionals can take appropriate action in the best 12 | drinkanddrugsnews | September 2018 interests of the individual. The act does apply to people with alcohol and drug problems; a person can be assessed as lacking capacity because of intoxication. However, the act suggests that if someone is likely to regain capacity in the near future, ie become more sober, then the capacity assessment should wait until that point, if possible. Herein lie the problems. Alcohol Research UK has analysed 11 Safeguarding Adult Reviews published in 2017 which related to the deaths of people either with chronic alcohol problems or alcohol use surrounding their death. These reviews suggest that the understanding of the act is poor in general. However, more specific problems exist in relation to people with alcohol misuse. The application of the Mental Capacity Act was a concern in all 11 cases. For example, a review from Waltham Forest highlights that: ‘The Mental Capacity Act advises you need to wait until a person is sober before you think about capacity. However, when a person is a chronic alcohol user it could be argued that they are never sober. More so that their ability to reason about whether they want to stop drinking is significantly impaired due to the addictive nature of their alcohol use. Therefore, is someone who is a chronic alcohol user ever in a space where their addiction is not impacting on their ability to reason?’ A review from Newcastle highlights that workers’ attitudes can also impede capacity decisions: ‘agencies… see Lee as more troublesome than troubled, a nuisance offender, an abuser of alcohol and drugs who chose a lifestyle that laid him open to risk. The fact that he did not have the mental capacity to make such choices was not recognised by some of the professionals who had contact with him.’ The biggest problem is that people like Joe continually move in and out of capacity due to their repeated intoxication: they have ‘fluctuating capacity’. A more sober Joe will demonstrate that he understands the problem of allowing people to come into his property and wants to do something about it. Four hours later he will be drunk again and will do none of the things that he has discussed. Does he have the capacity to manage his property and prevent the potentially abusive behaviour of his ‘friends’? This is not merely an interesting legal debate – for people like Joe this can be a www.drinkanddrugsnews.com