Mental capacity and communication are intricately linked. There are two assertions that can be made about the relationship between the two:
1/ All persons who lack mental capacity for a decision have communication difficulties.
A communication difficulty does not just relate to people who have no means of expression. People with communication difficulties do not all fall into the Court of Protection communication box (COP3 7.2). Communication is a broad term that covers receptive and expressive language in written and spoken forms. It also covers cognitive-communication, social-pragmatics and non-verbal communication too. Therefore, communication difficulty can occur in any of these areas.
Those people who do not meet the understanding criteria in the functional stage of the MCA (2005) two stage test, also have a communication difficulty – their receptive language is impaired in some form.
Further, those people who do not meet the recall criteria in the functional stage of the MCA (2005) two stage test, also have a communication difficulty – their cognitive-communication function is impaired.
Lastly, those that do not meet the weighing criteria in the functional stage of the MCA (2005) two stage test, also have a communication difficulty. They have difficulty with cognitive-communication relating to higher level language functions, such as, executive function, problem solving, organisation of thought and self-regulation.
2/ Just because a person has a communication difficulty does not mean the person lacks capacity for a particular decision.
Despite communication being a very broad term and communication difficulty encompassing a wide range of impairments, that does not automatically mean that persons with a communication difficulty do not have mental capacity for a decision. It does mean that Principle 2 of the MCA (2005) – supported decision making – has to be carefully considered and employed.
Thus, one can be confident that if someone lacks mental capacity for a decision that person has a communication difficulty. What you can never be certain of is whether a person with a communication difficulty has mental capacity for a decision until it is assessed with appropriate supportive communication measures in place.
Author: Danielle Roberts, Qualified Speech and Language Therapist with specialism in acquired neurological disorders.
Mental Capacity Assessor and Quality Monitoring Officer at TSF Assessors