Section 1(3) of the Mental Capacity Act states:
‘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’.
This is often referred to as ‘The right to make unwise decisions’
What is an Unwise Decision
We all make unwise decisions at times and as a Spurs fan this is something I seem to make every time I sit down to watch them! Whilst I’m sure you can all give an example of an unwise decision, actually defining them can be more difficult.
In essence, an unwise decision is a decision that someone else makes, that differs to the one you would make, based on the same body of evidence. It involves two very clear elements.
Firstly, the individual has to be able to understand, retain, weigh up and apply the relevant risks and outcomes associated with making (or not making) the specific decision in question. For example, what are the consequences of not having Lasting Power of Attorney in place?
Secondly, there has to be a series of clear, consistent and sequential series of steps to their logic/thinking that takes the person from the evidence to the outcome.
A Common Error
It is really important to understand the actual wording of the Act. It does not say that making an unwise decision means you have capacity, nor does it say that we have to let people make unwise decisions if they lack capacity.
What it does say though is that if someone has capacity and the decision they are making is, in your eyes unwise, then they should be allowed to make it.
Conclusion
The aim of this principle is to ensure we have the freedom to make decisions that might seem unwise or risky to others, so long as we have the capacity to do so.
People are entitled to make choices based on their own values, preferences, and perceptions of risk. This principle, safeguards individuals from unnecessary intervention and respects their right to live as they wish, even if others disagree (and even if it means supporting Spurs…)
One Response
A difficult problem as lack of capacity may be difficult to discern yet an unwise decision may be indicative of it.