"The Frontal Lobe Paradox": Executive Function and Mental Capacity

Executive function is an umbrella term describing a range of cognitive skills that help us function in day-to-day life, allowing us to stay safe, manage tasks, and get things done. It encompasses abilities such as:

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  Decision making

• Problem-solving

• Planning and organising

• Multi-tasking

• Generating motivation

• Retrieval of information

• Emotional control

• Flexibility in thinking

• Being able to switch tasks

A key element is being able to apply these in the moment a decision is required. It is our ability to control ourselves, organise ourselves, and regulate our behaviour. It is generally thought that these functions are controlled by the frontal lobe sections of the brain (although any interruption of the corticostriatal pathway can result in similar deficits).

When these cognitive processes are compromised, it is referred to as executive dysfunction. This can manifest in various ways, such as being unable to translate intention into action, being 'full of promises' but not following through, showing apathy, experiencing inability to initiate, plan, and sequence activities, struggling with new situations, exhibiting aimless, impulsive, and fragmented behaviour, being unable to monitor and evaluate their own actions, struggling to think flexibly or abstractly, being less able to adapt to change, displaying a black and white thinking style, and lacking a filter in social situations. This might present as going 'off task'" if not supervised or wanting to complete a task, perhaps even being able to say how to complete a task, but still being unable to complete the task. The consequences of frontal lobe injury impact the ability to weigh up consequences and operate in the present.

Executive function is increasingly relevant in the context of the Mental Capacity Act 2005 (MCA). While the terms 'executive function' and 'executive capacity' do not appear in the Act or its Code of Practice, these concepts are recognised in case law and are important for practitioners to understand. Executive capacity is sometimes used to describe how executive functioning relates to decision-making capacity under the MCA.

The most relevant element of the MCA concerning executive function is the ability to use or weigh information as part of the decision-making process (Section 3(1)(c)). The MCA Code of Practice acknowledges that sometimes people can understand information, but an impairment prevents them from using it, or leads them to make decisions without using the information. This aligns with the understanding of executive dysfunction as a disconnect between rational verbal answers and in-the-moment functioning, where someone can 'talk the talk' but not 'walk the walk'.

Assessing mental capacity in individuals with executive dysfunction can be challenging. A key difficulty is the 'frontal lobe paradox', where individuals can present well in formal cognitive assessments and provide coherent answers but still struggle significantly in day-to-day life to implement decisions. Therefore, capacity assessments may need to be supplemented by real-world observation of a person's functioning and decision-making ability over time, not relying solely on verbal reports. Evidence of a repeated mismatch between what a person says they will do and what they actually do is crucial when considering a lack of capacity due to executive dysfunction. It is important to determine if the person can appreciate the difference between their stated intentions and their actions.

Several conditions are associated with executive dysfunction, including dementia, acquired brain injury, autism, ADHD, and other mental disorders like schizophrenia, depression, anxiety, and personality disorders, as well as acute intoxication with drugs or alcohol.

When assessing capacity, practitioners should always consider whether practicable support can be provided to enable the person to make the decision. This might involve scaffolding, providing information in small chunks, and other person-centred approaches. If a person is found to lack capacity, it is important to record how executive dysfunction relates to the functional tests of the MCA and how best interests decisions account for this, aiming to support the person in putting their stated intentions into effect as far as possible. Consulting with specialists like psychiatrists or psychologists may be beneficial when concerns about executive functioning affecting decision-making capacity arise.

Case law highlights the importance of specifically addressing executive dysfunction in relation to the criteria of the MCA, requiring a full and robust mental capacity assessment to evidence the link between the impairment and decision-making difficulty. Courts also emphasise the need to support individuals to maximise their capacity and develop skills to mitigate executive function difficulties.