Part 1: Communication and the Mental Capacity Act (2005)

Blue cogs in a head

The communication series: A series of blogs exploring communication in the context of mental capacity. Written by Joanne Holder, speech and language therapist.

Part 1: Introducing the Communication Series – Communication and the Mental Capacity Act (2005)

“Communication is the vehicle which allows humans to recall the past, think in the present, and plan for the future” (Roy Berko[n.d])

A rather apt quote. For that reason it lends itself quite nicely to considering communication in the context of the Mental Capacity Act (2005). Here it is, rewritten:

“Communication is the vehicle which allows humans to recall the past (retain and recall), think in the present (understand), and plan for the future (use and weigh)”

The Mental Capacity Act (2005) states that if a person is unable to do any of the following then they are unable to make the decision.

  1. Understand the information relevant to the decision.
  2. Retain the information.
  3. Use or weigh that information as part of the process of making the decision.
  4. Communicate the decision.

Communication

Communication is integral to mental capacity and the presence of a communication difficulty can compromise participation in decision making on all 4 aspects above. Furthermore, where there is a communication impairment there is an increased risk for the individuals wishes being misunderstood, misrepresented or unduly influenced. (Silverman 1992, cited in Zuscak et al. 2016). So does the presence of a communication impairment automatically mean the person lacks the mental capacity for a particular decision? Absolutely not, but people with communication impairments are more likely to have their mental capacity assessed. It is therefore imperative that the communication impairments are recognised and the assessment tailored to the individuals needs to maximise communication, engagement and participation.

Supporting decision making

Section 1, principle 3 of the Mental Capacity Act (2005): ‘A person is not to be treated as unable to make a decision unless all practical steps to help him do so have been taken without success.’ In the case of clients with communication impairments, those assessing mental capacity have a duty to ensure the practical steps i.e. appropriate communication support are taken. The purpose of mental capacity assessments is not just to conclude whether someone can or cannot make decisions for themselves. The process is to ascertain their thoughts, beliefs and wishes surrounding the decision. These may then inform a best interests decision. The presence of a communication impairment can mask capacity. By taking all practical steps the assessor can support the individual to understand the decision and exercise their choice.

The ‘communication series’ aims to raise awareness of communication impairments and how they can impact on the process of decision making. It does not replace the specialist advice of a speech and language therapist. It is recommended you seek specialist advice from a speech and language therapist if you have a client or relative who has specific communication needs who is engaging in legal decisions.

References:

Mental Capacity Act 2005 https://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpga_20050009_en.pdf The Mental Health Act 2005

Zuscak, S.J., Peisah, C.,and Ferguson, A. (2016) A collaborative approach to supporting communication in the assessment of decision making capacity. Perspectives in Rehabilitation. Vol.38, No.1, pp 1107-1114.

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