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Answering Your Questions about Assessing Mental Capacity

8th July 2016 | Categories: Human Rights , Mental Capacity Act

When should we do it?  Why? And How?  And who should do it? 

This article aims to clarify what the Mental Capacity Act tells us about mental capacity, and answer the questions:

  • When should we do it?
  • Why?
  • How?
  • Who should do it?

I promise: it’s nothing like as complicated as it can be made to sound!  Indeed, it’s mostly recognisable as existing best practice.

Why should capacity sometimes be assessed?

People can wrongly be stopped from making decisions that are theirs to make.  On the other hand, someone must not be allowed to make a really risky decision when they are not doing so with capacity.

Take an elderly lady in a care home, recovering from a urinary tract infection. On a snowy night, staff find her trying to open the front door. She’s in her nightie and slippers, and says she needs to go home: her mum will have her tea ready and will worry about why she’s not back from school.

Staff know intuitively that they shouldn’t let her out: but their justification for stopping her must rest on deciding, rightly, that she lacks the mental capacity at this time to make this decision.  It’s not difficult, but they do need to consider her capacity properly and be able to explain, if asked, why they prevented her leaving.

What is mental capacity?

Many people used to think it was ‘all or nothing’ – someone either has mental capacity or they haven’t.   And it’s still too common for people to be assumed to lack mental capacity because of a diagnosis – dementia, or a learning disability – or because they’re very old.

But the law makes it much simpler than that.  Mental capacity is simply the ability to make a decision, when it needs to be made.

This includes the ability to make a decision that affects daily life – such as when to get up, what to wear, whether to buy something, whether to go the doctor – as well as more serious decisions:  whether to have surgery, or make a will, or move to live somewhere else.

The starting point must always be to assume that a person does have capacity to make a specific decision, though some people need quite a bit of help.

And sometimes someone makes a decision other people think is unwise, such as refusing a treatment or playing a dangerous sport.  But these aren’t reasons to decide that someone lacks capacity for that decision.  If staff know a lot about the person, as they should, they might know that Millie’s religion forbids certain treatments; Jim has ridden horses all his life, and still enjoys riding despite the risks.

We have all done things that others might think unwise, but that doesn’t mean we lack capacity.

When should someone’s capacity be assessed?

Someone’s capacity should not be assessed just because they are old, or have been diagnosed with a condition that might lead to lack of capacity.  But sometimes it is right to question their capacity.

This might be when…

  • They seem to be making decisions that are potentially dangerous to them and also out of character
  • Someone else has said they thought the person lacks capacity for a certain decision
  • They have been shown to have a condition that affects the way their mind or brain works, and they have already been assessed as lacking the capacity to make similar decisions.

How should we assess someone’s capacity?

The best way is a conversation, where the person tells you how they reached a particular decision.

At the start, the assessor must be clear about certain matters.  Can this decision wait, and, if so, might the person regain capacity?  Do they have enough information, for example to make a choice between two courses of action?

Then, you need to consider the ‘2-stage test.’  This isn’t as complicated as it sounds!

Stage 1 is to consider if the person has an impairment or disturbance in the functioning of the mind or brain (note how wide this is).  Stage 2 is to work out, using the four steps below, whether they are unable, because of this ‘impairment or disturbance’, to make a particular decision at the time it needs to be made.  This is the conversation bit: explore with them why they’re refusing, for example, personal care.

There are four elements to consider.  Can the person…

  • Understand information relevant to the decision, including what would happen if they refuse to decide
  • Remember that information, not necessarily for a long time, but for long enough to…
  • Use and weigh the information to reach a decision, and
  • Communicate that decision, by any means that is understood.

if the person cannot manage to do all these, even with all available help, they lack capacity for that decision.

In the example of the elderly lady who wants to go home to her mum, she cannot understand information about where she is living, or how old she is, due to her confused state.

Who should assess capacity?

The person who assesses someone’s capacity to make a decision will usually be the person who is directly concerned with that person at the time.  So, different people will be involved in assessing someone’s capacity to make different decisions at different times.

For most day to day decisions, this will be the person caring for them at the time.  A care worker may need to assess if they can agree to having a shower.  Then a district nurse might assess if they can consent to have a dressing changed.

Care workers usually don’t have to follow formal processes if they’re following the care plan, provided the care plan is based on a ‘reasonable belief’ the person lacks capacity to make specific decisions, such as accepting help with personal care.   That means the care plan is either created with the person, who then consents to it, or (in particular if restraint is used, for example to deliver personal care against someone’s will) there must be an assessment of the person’s capacity to decide to refuse certain interventions.

Rachel Griffiths – Mental Capacity and Human Rights Specialist

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