Assessments of Mental Capacity and the Cross-roads
11th April 2024
‘Nothing is built on stone; All is built on sand, but we must build as if the sand were stone.” Jorge Luis Borges
‘The Paradox’
In their timely and influential review of this issues, Melanie George and Sam Gilbert define the ‘frontal lobe paradox’:
‘Patients with frontal lobe damage can perform well in interview and test settings, despite marked impairments in everyday life. This is known as the ‘frontal lobe paradox’. Failing to take account of this when conducting Mental Capacity Act assessments can result in disastrous consequences for patients. We suggest that neuropsychologists work collaboratively with local authority social workers and care managers, who often have the final say in such assessments, to raise awareness of this issue’.
By definition, the associated issues are often elusive and complex. However, the potential implications of overlooking these complexities are also far-reaching; George and Gilbert’s influential review of the issues served as an important rallying call to all involved in the assessment of mental capacity and risk, particularly but not only following a traumatic brain injury. However, as alluded to in their article and subsequent discussions spanning both clinical and legal spheres, these issues often reveal underlying tensions relating to subjectivity/bias, cultural beliefs, training and professional/personal beliefs and values.
‘Executive functions’
Whilst brain injury, particularly that affecting the anterior brain structures, can result in impairment of ‘executive’ functioning, neuropsychologists have continued to grapple with defining what executive functioning is and correspondingly, what it is not. In an attempt to address the heterogeneity and diversity of these functions, neuropsychologists typically use a gamut of formal tests; furthermore, it is widely accepted that adequate assessment also requires appraisal of how the person functions in their daily life. However, the latter is also invariably coloured by broader factors, not least environmental, social and interpersonal influences but also other aspects of the person’s clinical condition including cognitive disturbance in other domains, pain, sensory changes and psychiatric disorder(s).
‘The paradox of the paradox’
Clinical Neuropsychology has inevitably been reticent in sharing its alchemy of psychometric assessment and clinical formulation. However, the paradox has increasingly and necessarily led to closer legal scrutiny of assessments and associated clinical opinions and decisions. Critically, a more recent scoping review has challenged the premise of the frontal lobe paradox.
‘Overall, our findings indicate a lack of readily accessible research specific to the frontal lobe paradox. In particular, there is a lack of contemporary research specific to the subject and an absence of clarification as to which syndromes and disorders are included within the term’.
Alas, the apparent absence of clarity in relation to this aspect of decision-making seems inevitable in view of the lack of coherence relating to executive functioning itself; an ‘umbrella’ term incorporating a vast array of cognitive functions is unlikely to provide a clear and specific premise on which to base adequate theoretical models which explain how we think and make decisions; in short, these ideas are only as robust as the foundations on which they are built.
So, we appear to find ourselves at a cross-roads; not only has a definition of executive functioning eluded us since the term was first employed by Donald Broadbent in the 1950’s, MCA assessments necessarily require that we define if and how changes to the person’s neurocognitive functioning (or ‘impairment of mind’) are impacting upon their decision-making (the ‘nexus of causality’) in that particular aspect of their life (‘issue specificity’).
‘The cross-roads’
Like the proverbial drunk man, Neuropsychology could be accused of erroneously searching for their lost keys under the nearby the street lamp because the light is better there. Equally, the MCA framework can collude with the idea that we are rational decision makers; the late Daniel Kahneman’s prescience seems particularly relevant here:
‘We think, each of us, that we’re much more rational than we are. And we think that we make our decisions because we have good reasons to make them. Even when it’s the other way around. We believe in the reasons, because we’ve already made the decision’. Daniel Kahneman.
Moreover, specific guidance for assessors in relation to executive dysfunction remains sparse and practitioners could be forgiven for feeling disempowered by the lack of empirical work relating to executive functioning changes and decision-making. An abundance of theoretical models might serve to create the illusion of clarity whilst decreasing the consistency/reliability of capacity decisions across different professionals; as my old supervisor used to say, “you pays your money and takes your pick”.
However, it also seems likely that another axiom of the Mental Capacity Act has become marginalised in this discussion; demonstrating that ‘all practicable’ steps’ have been taken to support the patient to make decision(s) in this area of their life is also incumbent upon us. For those working in neuro-rehabilitation, where the obstacles to delivering effective therapy and support can be complex and multitudinous, the need for greater care and clarity in how we describe and document these steps is critical in terms of informing the process of capacity assessment.
As reports of assessments of capacity have increasingly invoked the ‘frontal lobe paradox’, the risk of obfuscating the process by which patients make decisions is arguably increased. (I’ve only been awake for 2 hours and have already observed 3 ‘thinking-doing’ dissociations of my own). The cross-roads present various challenges to undertaking and reporting on mental capacity assessments particularly as we endeavour to understand the capricious and inconsistencies which distinguish us from the algorithms and AI which increasingly impact our lives.
As we stand at the cross-roads and consider these complexities we should not lose sight of the need to balance the protection of vulnerable adults with the empowerment/enablement of independence.
References
George, M.S., & Gilbert, S. (2018). Mental Capacity Act (2005) assessments: why everyone needs to know about the frontal lobe paradox. The Neuropsychologist, 5, 59 – 66.
Miyake, A., Friedman, N. P., Emerson, M. J., Witzki, A. H., Howerter, A., & Wager, T. D. (2000). The unity and diversity of executive functions and their contributions to complex “frontal lobe” tasks: A latent variable analysis. Cognitive psychology, 41(1), 49-100.
Newstead S, Lewis J, Roderique-Davies G, Heirene RM, John B. The Paradox of the Frontal Lobe Paradox. A Scoping Review. Front Psychiatry. 2022 Jul 22;13:913230.