Understanding Fluctuating Capacity

The Crucial Role of Expert Witnesses in Assessing Cognitive Abilities for Legal Determinations

The right to make decisions about their own lives is one most of us take for granted. However, like almost all rights, freedom of choice must be balanced with the safeguarding of vulnerable people, especially those who lack mental capacity. Disputes concerning mental capacity can be particularly challenging for Barristers and Solicitors in cases where a person’s mental capacity fluctuates, depending on the circumstances or particular timing. Expert witnesses can provide invaluable assistance to the Court in establishing whether or not a person had capacity at the time or event in question.

Understanding Fluctuating Capacity

What is fluctuating mental capacity?

Fluctuating mental capacity refers to a condition where a person’s ability to make decisions or understand information varies over time. For example, in one mental capacity assessment they may show they lack capacity and in the next assessment their score may indicate full or nearly full capacity.

There can be assorted reasons for fluctuating mental capacity, including:

  • Medical conditions – medical conditions, such as certain types of dementia, can cause cognitive abilities to fluctuate. For example, a person with dementia may have moments of clarity and lucidity followed by periods of confusion or disorientation.
  • Medications or treatments – some medications or medical treatments can impact cognitive functioning, and their effects may vary throughout the day or over time. For instance, medication side effects or the timing of drug doses can influence mental capacity.
  • Mental health conditions – mental health conditions, such as bipolar disorder or schizophrenia, can lead to fluctuations in mental capacity. Mood swings, psychotic episodes, or medication adjustments can affect decision-making abilities.
  • Environmental factors – factors such as stress, fatigue, or changes in the environment, can impact cognitive functioning.

Fluctuating mental capacity can pose challenges in determining a person’s ability to make decisions or give consent. This can have profound consequences in legal cases. For example, in Derbyshire County Council v AC [2014] EWCOP 38, the local authority sought declarations on several issues concerning a 22-year-old woman (“AC”) who had severe learning disabilities. One of the issues in question was whether she had capacity to consent to sexual relations. A Psychiatrist Expert Witness concluded that AC “probably has fluctuating capacity” and “is currently probably capacitous in this domain.” The psychiatrist also suggested that AC’s fluctuating capacity could be caused by her forgetting to take her anti-depressant medication and/or her hyperthyroidism not being adequately treated. The Court agreed with the expert witness that AC had capacity to consent to sexual relations; however, due to her fluctuating capacity, the judge said the local authority needed to carefully monitor the situation.

Fluctuating capacity and the Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) provides a legal framework for making decisions on behalf of individuals who lack the mental capacity to make decisions for themselves. Section 2 states that a person lacks capacity in relation to a matter if “at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

Before examining the test under the MCA for mental capacity, it is important to set out the six principles of the Act under which any decisions regarding a person’s capacity must be interpreted.

Section 1 of the MCA states:

(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The MCA sets out a two-stage test for assessing capacity:

a) Does the person have an impairment of, or disturbance in the functioning of, their mind or brain, whether temporary or permanent? This impairment or disturbance may be caused by conditions such as dementia, learning disabilities, mental health problems, or brain injuries.

b) If there is an impairment or disturbance, does it result in the person being unable to make a specific decision at the time it needs to be made? To demonstrate capacity, the person must be unable to understand the information relevant to the decision, retain that information, use, or weigh it as part of the decision-making process, or communicate their decision.

If a person’s mental capacity is found to be fluctuating, the assessment should be conducted at the time the decision is required. It is important to provide support to boost the person’s decision-making abilities and enable them to participate as much as possible in the decision-making process.

Final words

Determining whether or not a person had mental capacity when making a decision or taking a course of action is exceptionally challenging, especially if their capacity fluctuates. If you require an expert opinion regarding whether or not your client or the other parties’ client had mental capacity during a particular incident or specific time period, we have a team of Psychiatry Expert Witnesses and Psychology Expert Witnesses who can provide you with a comprehensive analysis and report.

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Please call us on 01865 587865, email office@expertcourtreports.co.uk, or request a call by completing our online form to learn more about our experts.