Social Care News and Features

What is executive functioning?

Executive functioning has been described as “the ability to think, act, and solve problems, including the functions of the brain which help us learn new information, remember and retrieve the information we’ve learned in the past, and use this information to solve problems of everyday life”.

The absence of such functioning is where a person – for example, someone with an acquired brain injury or eating disorder – gives what appears to be coherent answers to questions, but it is clear from their actions that they are unable to put into effect the intentions expressed in those answers. Colloquially, this can be described as the person being able to ‘talk the talk’, but unable to ‘walk the walk’.

Other conditions, such as autism, Prader-Willi syndrome, obsessive compulsive disorder and hoarding, can also be associated with executive functioning difficulties.

The term ‘executive capacity’ is sometimes used alongside executive functioning. The concept of executive capacity is normally used as a way of translating executive functioning for the specific purposes of the Mental Capacity Act 2005 (MCA). In other words, executive capacity is a way of defining how executive functioning can be understood in the context of decision-making capacity.

Terms such as ‘executive functioning’ and ‘executive capacity’ do not appear in the MCA itself, nor do they currently appear in the code of practice. However, the courts have recognised these concepts and referred to ‘executive functioning’ and ‘executive dysfunction’ in the relevant case law.

What does the MCA code of practice say?

The MCA is a vital aspect of the legal framework for social care professionals working with individuals experiencing executive functioning difficulties. Applied correctly, the MCA should empower and protect such individuals.

But applying the MCA is often not straightforward, not least because practitioners are faced with making difficult determinations in situations where an individual’s actions may be divorced from their understanding.

The MCA code of practice gives guidance on using or weighing information as part of the decision-making process. It states in paragraphs 4.21-4.22 that: “For someone to have capacity, they must have the ability to weigh up information and use it to arrive at a decision. Sometimes people can understand information but an impairment or disturbance stops them using it. In other cases, the impairment or disturbance leads to a person making a specific decision without understanding or using the information they have been given.

“For example, a person with the eating disorder anorexia nervosa may understand information about the consequences of not eating. But their compulsion not to eat might be too strong for them to ignore. Some people who have serious brain damage might make impulsive decisions regardless of information they have been given or their understanding of it.”

While the code does not use the term executive functioning, this is clearly what it has in mind in these paragraphs.

Key points for practitioners

When it comes to executive capacity, there are a number of key messages that can be drawn from case law. For instance, when it comes to capacity assessments:

• Always consider whether practicable support can be provided to someone experiencing difficulties with their executive functioning to enable them to make the decision in question.
• Difficulty with executive functioning is not, by itself, evidence of a lack of capacity.
• Be aware that people with executive functioning difficulties may overestimate their skills and abilities and underestimate their need for care and support.
• You may need to consider not just what the person tells you about how they would make an informed decision but also whether this decision will actually be implemented in practice.
• Look for evidence of past behaviour and whether this demonstrates an inability to put into effect their stated intention.
• You may need to consider whether the person understands that there is a mismatch between what they say they will do and how they act when faced by concrete situations.
• Consultation with others, such as family, friends and involved professionals, may be an important source of information about the person’s ability to carry out their decision.
• Clinical input may be required when assessing executive functioning, for example, from a clinical psychologist.

Also, when it comes to best interests decisions:

• Remember that the person’s wishes and feelings often carry significant weight in the determination of best interests.
• Think about how risks might be managed in a safe way, rather than seeking to remove all risks at all costs.
• Where relevant, it is permissible to take into account risks of harm to others when making the best interests decisions.

Assessing and working with people with executive functioning difficulties can be challenging for social care professionals. The individual may be engaging in behaviour which places them at risk of harm, and professionals are often faced with obstacles which make assessments very difficult to complete. So, it is very important to understand how the MCA should be applied in such cases and to apply that understanding to everyday practice.

If you have a Community Care Inform Adults licence, log in to access the full guide. There, you can read more on the statutory framework, recording decisions and key case law.