Page 17 - TSAB Adult B FINAL (1)

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Mental Capacity Act (2005). The Mental Capacity Act Code of Practice confirms that people have the
right to make decisions that others might think are unwise. It also states, however, there is cause for
concern if someone repeatedly makes unwise decisions that put them at significant risk of harm or
exploitation or makes a particular unwise decision that is obviously irrational or out of character. The
code states that this does not necessarily mean that a person lacks capacity. They may need more
information to be able to help them understand the consequences of the decision they are making or
there may need to be further investigation as to whether the person has developed a condition that is
affecting decision making.

6.38. Josh was considered to have a disorder of the mind or brain due to his substance misuse, his self-harm
and suicide presentations. It was possible that due to the influence of drugs, that Josh’s mental
capacity would be fluctuating. As per the Act, Josh needed to be given opportunities to make some
decisions at a time where he was not under the influence of drugs or when he had large amounts of
insulin affecting him. This was often the case with staff on the acute hospital wards discussing his care
needs with him after the initial crisis was over.

6.39. Staff who did not know about Josh’s current substance misuse may have assessed capacity when he
was under the influence of drugs. It cannot be determined now, how many decisions Josh made that
were non capacitous, if any, due to these issues, but this is using hindsight for learning. Staff who
were assessing Josh in an urgent or crisis situation assessed and recorded information regarding his
ability to refuse treatment based on the information available to them at the time of the assessment.
The findings of their mental capacity assessments were reported to have been comprehensively
recorded. When Josh was deemed not to have capacity due his level of consciousness, they
intervened and treated him in his best interests. The Mental Capacity Act Code of Practice states that
best interests should be based on what decisions a person would make if they had capacity. No
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clinician, though, without a legally approved advance decision in place, would allow a person to die
and not treat them under self-harm and suicidal attempt circumstances, the findings of this review
would not disagree with this.

6.40. There are also other considerations that do not directly apply within the Mental Capacity Act, but they
do relate to Josh’s situation and the decisions he was making regarding his overdoses of insulin.

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6.41. Work undertaken by the Samaritans suggests that an understanding of the concepts of agency and
control lead to better knowledge of the relationship between socioeconomic disadvantage, self-harm
and suicide. Agency is the ability to make choices and take action freely and having control implies a
degree of agency. It is suggested that people refer to feeling trapped and having few choices and are
linked to the experience of having little control over gaining housing security, getting a job and having
positive relationships with others. These, along with the childhood experiences of rejection, could

7 Department of Constitutional Affairs, (2007) Mental Capacity Act Code of Practice available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf
accessed 27 June 2019
8 Advance decisions are further provisions under the Mental Capacity Act to refuse specified medical treatment at a time in the future, even
if this might result in death. Advance decisions should specify which treatment is to be refused and include as much detail as possible
regarding the circumstances under which the advance decision will apply. They will only come into force once an individual has lost the
capacity.
9 Samaritans (2017) Dying from inequality Socioeconomic disadvantage and suicidal behaviour

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