What does the Mental Capacity Act 2005 Mean?
The Mental Capacity Act (MCA) (2005) is a legislative framework that has been in force since 2007 and applies to England and Wales (people over the age of 16).
Using a 2-stage functional test of capacity the practitioner must determine if there is an impairment of, or, disturbance in the functioning of a person’s mind or brain (stage one). If there is, then the practitioner must determine if the impairment or disturbance is sufficient that the person lacks the capacity to make a particular decision (stage two).
The main purpose of the MCA is to promote and safeguard decision-making within a legal structure. It does this in two ways: by empowering people to make decisions for themselves wherever possible, and by protecting people who may lack capacity and allowing people to plan ahead for a time in the future when they might lack the capacity (NICE).
Completing Mental Capacity assessments during the early stages of my career was overwhelming. Although I had an understanding of how to apply the Mental Capacity Act 2005, in practice, I struggled with the layout of my report, what questions to ask and how to set the Threshold of Understanding (TU) and what constitutes an ‘unwise’ decision.
This article is to give you the top tips to writing high quality mental capacity assessments.
What are the Principles of the Mental Capacity Act?
- Principle 1 (s1(2) MCA): the individual should be assumed to have capacity by the practitioner unless proved otherwise. This principle was also highlighted in case law CC v KK and STCC . The individual should also be informed of the purpose of the assessment.
- Principle 2 (s1(3) MCA): the individual should not be treated as unable to make a decision until everything practicable has been done to help the person make their own decision. This principle was also highlighted in case law LB Wandsworth v M & Ors.
The Code of Practice also highlights a range of practical steps which may assist in this objective . For instance, the practitioner must consider the time of the day the individual is most alert. Bearing in mind their diagnosis, for example, vascular dementia. The practitioner may use items such as posters or videos to help the individual retain information (Para 4.20 MCA Code of Practice). The individual should be asked if they want someone to support them during the assessment.
- Principle 3 (s1(4) MCA): the practitioner should bear in mind that an individual will not be treated as unable to make a decision merely because they make an unwise decision.
- Principle 4 (s1(5) MCA): decisions made on behalf of an individual who has been assessed to lack capacity should be made in their best interests, and s.4 of the MCA should be followed to assist when making a best interest decision.
- Principle 5 (s1(6) MCA): when a decision is made on behalf of an individual who lacks capacity, it should ideally be the least restrictive of the individual’s rights and freedoms and other options considered.
How many stages are there in the test of capacity?
There are 2 stages
- Functional test
- Diagnostic test
As set out in the MCA when testing for capacity, there are three elements;
- Firstly, is the individual unable to make a decision (functional test: (understand information relevant to the decision being made, retain salient information, weigh and use the information, and communicate their decision), s.3 MCA 2005 if so,
- Secondly, is there an impairment or disturbance in functioning of the mind or brain (diagnostic test) s.2 MCA 2005
This ordering supports anti – discriminatory practice and it is the opposite to what is set out in the Code of Practice to the MCA 2005, however, case law PC & NC v City of York now makes it clear that the ordering set out in the Act itself must be followed and highlights the importance of ‘causative nexus’.
Who can assess capacity?
The Assessor (anyone) can carry out a capacity assessment for example, a friend, family members, a care worker, an occupational therapist, a nurse, a doctor or a social worker
What are the key elements of the Mental Capacity Act 2005
The key element is the fact that the MCA is a decision support tool. The decision maker should think thoroughly about the specific decisions to be made and build a knowledge base in order to gain a thorough understanding of the context of the decision. In addition, there is the need to establish a clear causative nexus.
In my view, the most common problem with capacity assessments lies in the ability to set the Threshold of Understanding when working with individuals. I often ask myself this question “how do I set the Threshold of Understanding (TU) and know what Salient Points (SP) the individual should understand?”.
Remember that sometimes, the courts would have already set the TU for practitioners. For instance, Capacity to Litigate is not covered by the Mental Capacity Act 2005, so we use case law and legal test Dunhill v Burgin  UKSC 18.
While the framework for decision-making is covered by the Act itself, the onus is on the practitioner to determine the TU. Personally, when using the MCA framework, I follow an amazing concept devised by Farmer (2017) called the CMSL Principle (Concept, Mechanics, Short term and Long term) as a framework to help me think about relevant questions to ask during the assessment.
- Concept – what is the idea?
- Mechanics – how does it work?
- Short term – over a short period, what does the individual need to understand?
- Long term – over a long period, what does the individual need to understand?
- Concept – what is a tenancy agreement?
- Mechanics – how does a tenancy agreement work?
- Short term – what does it mean to have a tenancy agreement?
- Long term – what would happen if you do not have a tenancy agreement in place?
In case law LBX v K, L, M  EWHC 3230 (Fam) and  EWHC 4170 (Fam), the court highlighted the need for evidencing a clear rationale; guarding against imposing too high a test of capacity; the importance of using tangible resources, like drawings and pictures, to assess and improve the person’s level of understanding; and clearly articulating the information relevant to the decision.
Best Tips to Writing Excellent Capacity Assessments
Tip 1: Develop a Profile of the Person
- Prior to starting a mental capacity assessment,
- I make it a priority to read the referral and gather some background information about the individual.
- I will contact the Referrer to obtain their views on the situation and how to best support the individual during the assessment.
- Information may also be gathered from previous assessments on record.
- Consider their communication needs.
Tip 2: Consider What Triggered the Assessment
- I ask myself reasons for carrying out this assessment. For instance, am I carrying out this assessment because the person’s behaviour or circumstances causes doubt as to whether they have the capacity to make a specific decision?
Tip 3: What is the Specific Decision to be made
- When carrying out assessments, I have realised that it is important to break down the decision and make it as specific as possible. This is because social work is about promoting independence.
- The individual may have the capacity around certain aspects of the decision to be made and can have autonomy in this area.
Tip 4: Consider the Practical Steps
- I bear in mind the assumption of capacity and that an unwise decision is not necessarily an incapacitated decision; that the burden of proof lies on myself as I am asserting a lack of capacity; and that the standard of proof is the balance of probabilities.
- I am always conscious of the need to not judge capacity by reference to whether the person’s decision is a ‘good’ or ‘bad’ one. Rather, I learnt that my assessment should focus on the mental process being followed by the person to arrive at their decision.
Tip 5: Set the Threshold of Understanding and include a Section for Analysis
- The section on analysis should be under each of the functional areas (understand, retain, weigh, or communicate).
- I include a section on ‘analysis’ to evidence my professional views and judgement under the functional areas (understand, retain, use/weigh, or communicate).
- On my report, I state the practical steps which have been taken to enable and support the individual to improve their ability to participate in the decision making process. This goes beyond simply stating that I have made consideration of the time, location and setting for the assessment.
- Other practical steps I consider include whether to reassess the individual or return to the assessment at a better time. Whether to carry out the assessment at a time when the person is most relaxed/alert. I also consider whether to use an assistive technology/communication tool, support from a professional, advocate, friend or carer.
To conclude, the last thing you need to know about Mental Capacity Assessments is the need to establish the Causative Nexus. You should always explain how the impairment of, or disturbance in the functioning of the mind or the brain causes the person to be unable to make the decision.
Here, I usually ask myself the question – how does the diagnostic test influence the functional element?
For example, “I can conclude that Mr Smith was unable to understand, retain the salient information due to his memory loss, unable to weigh information and use it to make his decision. Difficulty in memory, inconsistencies in discussions and confusion are symptoms of brain injury which is an impairment of the mind or brain. Because of that impairment, Mr Smith is unable to make the relevant decision to court proceedings. Mr Smith’s inability to make a decision is caused by his brain injury and not by any other factor” (4.13 to 4.30 of the MCA Code of Practice).
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