Supporting someone with an addiction is a complex and at times a demanding role, especially when it comes to understanding the principles of capacity and consent. If you are caring for someone who has an addiction, their ability to make informed decisions or give informed consent might vary at times due to intoxication, the effects of withdrawal or stress, or a co-occurring mental health condition.
Here we explore the important areas of capacity and consent, and share practical points you might consider if you are supporting someone with a dependency or addiction.
Capacity is the ability to understand information, make informed decisions and communicate your own choices. Someone who is able to do this is described as ‘having capacity’, and someone who is not able do this is described as ‘lacking capacity’.
Somebody may temporarily lack capacity due to illness, intoxication, a mental health issue, or stress. Lack of capacity is not a fixed state, and capacity can vary according to the particular decision having to be made. The Mental Capacity Act 2005 exists to protect people when decisions about their care or treatment might be necessary, and applies to everyone aged 16 and over (except when it comes to Lasting Power of Attorney and Advance Decisions, when it only applies to adults aged 18 and over).
There are five key principles to the Mental Capacity Act.
- Presumption of Capacity: Adults and young people over the age of 16 have the right to make their own decisions unless it is proven they lack capacity to do so.
- Right to Be Supported: People must be given enough support to make their own decisions before it is decided that they can’t.
- Unwise Decisions: Making what others might view as an unwise decision does not mean someone lacks capacity.
- Best Interests: Any decision made or action taken on behalf of someone who lacks capacity must be done in their best interests.
- Least Restrictive Option: Any potential action or intervention should be the least restrictive of the person’s basic rights and freedoms.
The law states that someone has capacity if they understand information relevant to a decision, can remember the information long enough to make an informed decision, can evaluate or weigh up options when making a decision, and communicate their choices for making a decision. If it can be proven that someone does not have capacity, then a decision must be made in a person’s ‘best interests’.
Consent involves a voluntary, informed agreement to a proposed course of action, like a treatment plan or medical procedure for example. For consent to be valid, someone must have the capacity to consent, have enough information to feel informed, and must be able to make their decision without feeling pressured or forced to do anything. If the person you care for is offered support or treatment, they must consent to receiving it, either verbally or by signing up to it. They might also consent to information being shared with you or somebody else they trust.
If someone is under 18, or someone lacks capacity, there are structures in place to protect their rights and make sure their wishes are respected as far as possible. Sometimes that means that someone else can make decisions on their behalf.
If someone has been granted Lasting Power of Attorney (LPA) it means they are legally allowed to make decisions on behalf of another person if that person loses capacity. There are two types of LPA: one for health and welfare, and another for property and financial affairs. If you are supporting someone with a dependency or an addiction and would like to know more about what it would mean for them to grant you Lasting Power of Attorney, our article goes into greater depth.
Ways to involve someone in any decision-making before periods of incapacity
Having conversations in advance with the person you are supporting about their future care can help them to feel empowered and confident that their wishes would be respected if ever they were unable to make decisions due to a period of incapacity. If the person you care for wants to refuse specific treatments in the future, they can make these choices legally binding by creating an Advance Decision. Only an adult over 18 can create an Advance Decision, and it should be in writing or written for them (or recorded in their healthcare notes), be signed and witnessed, and state clearly that their decision applies even if their life is at risk.
As well as or as an alternative to an advance decision, a ReSPECT form can be completed or an Advance Statement. A ReSPECT form records someone's wishes about their care and treatment in an emergency, and is drawn up by the person themselves and their healthcare team. Whilst it isn’t legally binding like an Advance Decision, it is more wide-ranging and healthcare professionals would consider it carefully when making decisions.
An Advance Statement covers someone's wishes about all aspects of their future care, not just emergencies. Again, an Advance Statement is not legally binding but would be taken very seriously by anyone involved in their care. Someone can create an Advance Statement themselves, or with the help of a GP, care coordinator or another member of their health team.
Regularly reviewing any Advance Decisions, Advance Statements or ReSpect forms with the person you care for during periods of stability will ensure these documents accurately reflect their current wishes. It’s a good idea to make sure any documents created by the person you care for are clearly labelled and easy to access in the event of a crisis. They might give a copy to you and to other close friends or family who might support them in an emergency. This can all give both you and the person you support peace of mind that their preferences would be respected should they ever be unable to give their consent or to make informed decisions in the future.