Last month, the County Durham and Darlington Coroner issued a Prevention of Future Death (PFD) Report, highlighting the need for updated guidance on assessing mental capacity. 

The PFD report followed the death of an individual in a house fire, with the subsequent Inquest concluding that the individual's hoarding disorder and executive dysfunction made a more than minimal contribution to the fire.

Hoarding disorder is a mental health condition and, as such, does not typically mean that a person lacks mental capacity under the Mental Capacity Act 2005. However, the PFD report raises a question: Is there a tipping point in cases involving hoarding disorder/executive dysfunction, where action should be taken on behalf of that individual anyway?

The need for social care professionals to balance their duties under safeguarding and care obligations to potentially intervene, against the conflicting need to respect a person’s mental capacity to make decisions about how they live their life, including hoarding, if they choose to – is not a simple task. 

Safeguarding guidance on hoarding currently states:

‘A decision on whether a response is required under safeguarding will depend on the adult’s ability to protect themselves by controlling their own behaviour. There may come a point when they are no longer able to do this, without external support.’

The Coroner highlighted a lack of clarity around when that point referred to would be reached in practice. As a result, the PFD report seeks guidance on how to incorporate the consideration of executive dysfunction into the assessment of mental capacity and how to assess when the point at which external intervention becomes necessary for adults with hoarding disorder.

PFD reports must be responded to with the proposed actions that will be taken to address the risk of future deaths in similar circumstances, or to explain why no action is proposed, within 56 days. 

Whether or not the guidance or law on these points is likely to change remains unclear at this stage. Whilst we will be closely monitoring the outcome to provide updates on what this might mean for organisations, one thing remains consistent in the meantime – that understanding how and when to assess mental capacity effectively and documenting this appropriately is the key to care providers ensuring that they are meeting their duties.

For more information and advice on mental capacity issues, please contact Molly Quinney or a member of the regulatory team. 

Our team also offers bespoke mental capacity training.