Mental Capacity Assessments

Why might it be of interest?
The Mental Capacity Act is not, in essence, complicated and neither are mental capacity assessments. In application it may not be straightforward but the underlying principles are straightforward.

This document has been written by Sue Robson following several training sessions and googling and it has been checked by a senior care manager of a residential college.

The aim of the document is that you will understand what you need to know about mental capacity assessments. You may hear the term from professionals and many people over complicate or misunderstand when there might be a need for an assessment, the process and who can carry them out.

There are 5 guiding principles:

• assume a person has the capacity to make a decision themselves, unless it’s proved otherwise
• wherever possible, help people to make their own decisions
• do not treat a person as lacking the capacity to make a decision just because they make an unwise decision
• if you make a decision for someone who does not have capacity, it must be in their best interests
• treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms

The MCA says a person is unable to make a decision if they cannot:

• understand the information relevant to the decision
• retain that information
• use or weigh up that information as part of the process of making the decision
• communicate their decision

A mental capacity assessment is specific to the decision needing to be taken and the time the decision is being made.  It cannot be generalised to different decisions or to decision making at a different time.  Lack of capacity may be short term or intermittent.

The MCA covers all types of decisions, big and small. This can include day to day decisions (eg what to wear or eat) or decisions on taking medication or where an individual might live.

The MCA applies to situations where someone is unable to make a particular decision at a particular time because of the way their mind or brain is affected. There should be no presumption that the individual would not be able to make the decision at a different time.  For example, when in the middle of a depressive episode they may not be able to make a decision but when well again they can make the decision.  In this instance you may want to delay making the decision until the individual can make the decision themselves.

You cannot decide that an individual lacks capacity based on age, appearance, condition or behaviour.  Individuals have the right to make an unwise or eccentric decision and should not be deemed as lacking capacity because of that.

Every effort should be made to enable the individual to make the decision themselves.  Things to consider:

• Does the individual have all the relevant information?
• Do they have information about alternatives?
• Has the information been explained in a way that’s easy for them to understand?
  • For example, by using simple language or visual aids
• Have different methods of communication been explored?
  • For example, if the individual is non-verbal how do they communicate
  • Can anyone else help with communication, a family member, carer, advocate
• Are some times of the day better for the individual than others?
• Are there particular locations where the individual is more at ease?
• Can the decision be delayed until they are able to make the decision?

The decision should be made in the individual’s best interests and you should take the time to establish what the individual would want to happen:

• Encourage participation, see above
• What would the individual take into account if they were making the decision
• Can you establish their views – including past wishes/feelings, beliefs/values
• Avoid discrimination – do not make assumptions based on age, appearance, condition or behaviour
• Is the individual likely to regain capacity
• Consult with family, friends, carers, etc

Least Restrictive Option:

• Consider if something else would interfere less with the individual’s basic rights and freedoms
• Is there a need to act or a decision to make
• If there’s more than one option which one would be less restrictive
• The final decision or action must allow the original purpose of the decision to be achieved
• It may be necessary to choose an option that is not the least restrictive alternative if that option is in the individual’s best interests

When should a mental capacity assessment be carried out?

• When treatment or care is required and you have a reasonable belief that an individual lacks capacity
  • The more serious the decision, the more formal the assessment needs to be
• When an individual is unable to make a particular decision at a particular time because their mind or brain is affected by illness or disability
• Lack of capacity may not be permanent, it may be short term or intermittent
• Assessments are time and decision specific

What is a reasonable belief that an individual lacks capacity?

Professionals and / or people who know the individual well may have noticed changes in an individual’s behaviour or circumstances that leads them to believe that the individual lacks capacity to make a specific decision.  Or the individual may have previously been unable to make a decision for themselves, for example.

Assessment is simply about establishing why you have a reasonable belief that an individual does not have capacity – it should not be a bureaucratic process.

The MCA includes a 2 stage test of capacity:

• Is there an impairment, or disturbance, in the functioning of the individual’s mind or brain?  If so
• Is that impairment or disturbance sufficient that the person lacks capacity to make a particular decision

The assessment must be made on the balance of probabilities – is it more likely than not that the individual lacks capacity?

What affects an individual’s ability to make decisions?

An individual’s capacity to make decisions can be affected by many factors.  Some may be short term or intermittent.  For example:

• Stroke
• Brain injury
• Mental health issues
• Dementia
• Learning disability
• Confusion, drowsiness or unconsciousness
• Substance misuse
• Anaesthetic or sedation

Who should assess capacity?

• The person carrying out an assessment is called an Assessor
• This is not a formal title and assessors can be anyone
• Anyone caring for or supporting an individual who may lack capacity could be involved or carry out an assessment, for example
  • Family member
  • Care worker, Care service manager
  • Nurse, Doctor, Social worker
• The assessor must understand their role and responsibilities
• Health and social care professionals, not necessarily psychiatrists or psychologists
• In complex cases it would be appropriate to get a professional / specialist opinion

Examples of who might carry out Assessments

• A carer or support worker may assess the person’s capacity to choose whether to have a bath or what to eat
• A district nurse may assess their capacity to consent to having a dressing changed
• A dentist may assess their capacity to consent to having a filling
• A GP may assess their capacity to take a certain medication
• A Deputy appointed by the Court may assess their capacity to manage finances
• A social worker may assess their ability to make a decision where to reside
• An Occupational Therapist may assess their ability to use a specific piece of equipment safely
• A consultant may assess their ability to consent to major surgery

Record Keeping

• Records will vary in formality and detail depending on the complexity of the decision
• As a general rule there is no need to record assessments of capacity to take day-to-day decisions

To have protection from liability when providing care or treatment staff must have a reasonable belief that the person lacks capacity.

In these circumstances it is useful to be able to describe the steps taken and have a written record.  Professionals are subject to higher standards in terms of record keeping and a formal record will be required to be kept, for example in the patient’s clinical notes if a doctor or a healthcare professional is proposing treatment for someone who lacks capacity.

What to record?

• How much the person is able to understand the relevant information
• Whether the individual can remember the information long enough to make the decision
• Whether the individual can weigh up the pros and cons
• How the individual can let other people know what their decision is
• Steps taken to establish the above
  • For example, choosing an appropriate time of day, asking the question in different ways, giving the individual time to answer, support of another person
• Information about past and present wishes and feelings
• Who was involved in taking the decision

In general the amount of information included in a written assessment should increase with the significance of the decision to be made.