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The role of the family in recovery from brain injury is of central importance. Family members provide emotional and practical support, advocate for the patient and assist in rehabilitation. The experience of observing a family member following a traumatic injury is extremely challenging and families can experience high levels of distress, anger, guilt and denial in the early post-traumatic phase. These features are followed, in the longer term, by increasing social isolation, depression and anxiety about the future1–3 and can persist for many years after discharge from hospital. Cognitive and personality changes in the individual with the brain injury are reported as the main causes of family distress than other consequences.
This chapter focuses on the legislation for England and Wales, but many of the questions and issues raised are familiar to clinicians working within the Scottish legislation, and in other jurisdictions. The Mental Capacity Act 2005 includes a set of guiding principles and definitions of capacity; these are listed in the chapter. There is a two-stage test for the assessment of capacity. First, it must be demonstrated that there is an impairment in the functioning of the mind. Second, the assessment of capacity must address decision making process. There are some standardized assessments of capacity, which may be of assistance in some circumstances. However, the emphasis on the particular decision at a particular time means that individualized assessments is often required. Where an individual is found to lack capacity to make a particular decision, the Mental Capacity Act 2005 provides the decision maker with a legal framework to follow.