An Assessment of Capacity

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I am constantly assessing capacity. It isn’t always done on the formal paperwork that we use when a major decision or one likely to have major consequences is being made.

Sometimes it is  a simple action that might be almost subconscious. Does the person who is drunk on the night bus know which stop he wants to get off at? Sure,  he’ll have capacity tomorrow but by that time he might be in Hertfordshire.

I wouldn’t say it is something that only happens at work. Incapacity happens to all of us at times. It might not be drunkenness but rather sleepiness.

Capacity and incapacity doesn’t just happen to older people with memory problems.

However, the Mental Capacity Act 2005 is very clear that attempts should be made to wait until a person has regained capacity – if it is a temporary state – when a decision is necessary.

And each decision and assessment of capacity is taken independently. Someone can have the capacity to make one kind of decision about a preference of daytime activity or preference about living arrangement but lack capacity over another matter – like managing finances.  It is not wholly uncommon for me to do a couple of capacity assessments simultaneously and have different results for each.

I want to look back at a  capacity assessments I’ve done in the past. I’ve changed or amalgamated details to anonymise the scenarios and obviously the names are invented!

Mrs Smith has Alzheimer’s Type dementia. She gets very confused by details and has a deteriorating short term memory. She lives alone. I was asked to assess and make a decision about her capacity to manage her finances due to some concerns that she had been giving money to a ‘friend’ who wasn’t really a friend and was now hassling her for more money.

It seemed initially quite straightforward.

The Capacity Act specifies 5 principles and on that basis I undertook the assessment.

The first is to assume capacity unless proves otherwise. This is sometimes quite a  hard one with some background information in your hand. It is more difficult to assume this position than it might seem.

All practicable steps must be taken to help that person to make a decision

A person is not unable to make a decision because their decision is unwise or we wouldn’t agree with it

Any decision taken on behalf of someone who lacks capacity must be done in their best interests

and – it must be the least restrictive option.

With those principles in the back of ones head – there are 2 other things to consider when actually assessing whether someone has capacity to make a particular decision according to the Mental Capacity Act 2005.

Firstly – there has to be some kind of ‘impairment or disturbance of the mind or brain’. This can be permanent or temporary and is incredibly broad. but then, this disturbance or impairment has to be sufficient to prevent them from making a decision at that time. If you can wait for a decision, you must.

These kinds of assessments would take place thousands of times in hospitals up and down the country as people are admitted who lack consciousness and decisions have to be made before there is a chance to ask about treatment choices.

In the case of Mrs Smith, I am visiting her at a time of her choice – late morning – we are in her home and she is familiar with me. Her dementia would be the impairment or disturbance of the mind or brain and while she has good days and bad days, the lack of significant variance in her cognitive functioning is sufficient for me to be assured that a time delay would not lead to her condition improving.

Having passed those hurdles there are four parts to the actual capacity assessment.

Namely that Mrs Smith

1. Understands the information relevant to the decision

So I ask her in general about her finances – how she gets her money, how much money she gets, what would she do if her money wasn’t available one week or didn’t turn up?

How much does she spend on her weekly shop? How much is a loaf of bread?

These might sound minor but it builds a picture for me of her understanding of finances and proportions of money. If she thinks a loaf of bread costs £50, giving £50 to her friend is going to have different implications to her.

These are also fairly straightforward questions to build into a conversation. It doesn’t have to be a form-filling frenzy and ideally should be in the form of a relaxed conversation.

I also need to be clear that Mrs Smith understands the implications of her actions.

So I might ask about savings and what she would do if she were £50 short one week – would she still have enough for the essentials?

2. Can the person retain the information given

I might ask back some of the questions I’ve asked previously or just add a gentle reminder or two about what I’ve already said.

Where was I? Ah yes, thanks for that, Mrs Smith, I was asking you about your pension, wasn’t I?

3. Weighing up the information as a part of the decision-making process

So Mrs Smith, you know when you are £50 short for the pension because you’ve given it to Mr Brown.. what is the result of that?

Sometimes someone might have a particular ‘block’ about the consequences of a particular actin – so Mrs Smith might say, I know that I am short but there’s always more money where that came from. I never run out of money on my £95 a week pension and lack of savings.

OK, not the best example but she  might be able t retell me the outcomes but not relate them to her situation directly or use the information given (she is £50 short) and find the relevance in her own life.

But that’s isn’t what she said.

She said that she had always given money to Mr Brown. Yes, it left her short of cash as it always had, did and would but she would struggle by. She just bought less.

4. The last part is that the assessee has to be able to communicate the information back.

Every effort has to be made to facilitate this for people who might have some kind of sensory impairment. Any kind of communication ‘counts’ – it doesn’t have to be verbal at all.

Mrs Smith was able to talk profusely so communication wasn’t a problem for her.

In the end, I decided that she did have capacity to make decision regarding her finances and fell into what I, personally, would consider the ‘unwise’ decisions area. She had, I learnt, given money to people who asked her for help, for many years. This was not new behaviour when she developed Alzheimer’s. She was more vulnerable now but that is for the safeguarding procedures to manage.

Just because she acts in a risky way doesn’t mean that she lacks capacity.

Just because she need to take actions to protect her, doesn’t mean that she lacks capacity.

It is just a simple example. I hope it’s useful to someone ‘out there’ in understanding the process.

We have lots of forms to complete, of course, but I try to jot down a few questions in advance that might take me through the first stages of ensuring someone understands the decision and has weighed up the information given. Each decision though is unique.

I would involve family and friends as far as possible because it builds a picture of who that person is and was and what they would want if a decision has to be made on their behalf.

Sometimes it is too easy to assume that someone lacks capacity from looking at their history and documentation.

Sometimes the harder decisions are to be made when capacity exists.

Lack of capacity does not just mean ‘we can make a decision for you’ – the decision has to be right for that individual. Not right for the professional. Not right for their family. Not what minimises risk.

But what would that person choose to do if they were able to.

It can be more of a quandary than first appears and is never a decision to take lightly.

11 thoughts on “An Assessment of Capacity

  1. Pingback: Tweets that mention An Assessment of Capacity | Fighting Monsters --

  2. Fantastic article, I’ve written several assignments on various case studies around the MCA, I only wish I’d had this article to spell out the practicalitys of implementing the act whilst writing them! It seems to be an area of substantial growth in terms of the work mental health social workers do, can I ask how this fits in alongside the other statutory amhp duties of assessing for risk under the MHA? I’m told time and time again by lecturers that the two are distinct, which I fully appreciate, but the area that remains grey to my mind is where do (if they do at all) the ‘risky’ unwise decisions made by a person with an ‘abnormality of mind’ start to converge on the ‘risk posed to themselves or others’ necessary to begin looking at possibilities for compulsory detention under the MHA? I’m quite sure the question I am asking needs to be further clarified but I think this is indicative of my personal misunderstanding of the interplay between the acts. If anyone could shed a little light I’d be very much grateful as its the area I wish to practice post qualification. Thankyou, mark

  3. I think something should be done about the Court of Protection:-

    1) Huge fees, sometimes more than £1,000 per case.

    2) Absurd number of forms, some forms even required to ask permission to submit other forms!

    3) Excessive lead time, up to 6 months quoted in their service levels.

    And even if you get a judgement in your favour they apply cripplingly severe terms to it that make it almost unworkable.

    Not nice people to deal with really. Their efficiency should be increased and they should be made more user friendly and accessible to ordinary people and not just the legal profession who would charge even more on top to deal with them.

  4. I think it’s possible to complicate the relationship between the two pieces of legislation unnecessarily. The MHA exists to authorise the compulsory treatment of mental disorder, where stringent tests are met. It is generally used in in-patient settings. The MCA has the potential to authorise virtually any other act necessary to promote someone’s welfare in hospital and in the community. There are a few contradictions and quirks but largely, the two pieces of legislation overlap and could easily both apply to the same group of people (and thus provide important safeguards and keep all us plastic badge types up to the mark).

    The definitions of Mental Disorder under the two Acts are practically identical. Mental Capacity Act – ‘an impairment of, or a disturbance in the functioning of mind or brain’ , (s. 2(1) MCA); Mental Health Act – ‘any disorder or disability of the mind’ , (MHA CoP 2.8). You’d have to be a reasonably dedicated member of the awkward squad to come up with any meaningful distinction between them. As an AMHP working with older people and as a BIA, I have encountered staff trying to do just this and am still told occasionally and with some conviction that people with dementias, brain injuries and neurological problems don’t fall within the scope of the Mental Health Act. They do. (There’s no debate about this – see para 2.10 of the (Welsh) MHA Code of Practice for a list of mental disorders the Act covers). Staff trying to make this distinction are generally not trying to apply the principles of either Act but are trying to do something else, like divert a referral to a different team or gatekeep resources.

    I’m not sure why the MCA didn’t have exactly the same definition as the MHA of ‘mental disorder’ from the start.

    The other point of convergence between the two codes is the use of the ‘least restrictive alternative’. I think that staff genuinely accept the importance of this principle and I do see conscientious work trying to uphold it.

    To some extent, the two pieces of legislation seem to have been intended to be used together. MCA / DoLS does not give staff powers to enter private addresses or to take people to places of safety in dire emergencies and I have heard staff bemoan this. However, are these powers required? I think they’re already there with s. 135 of the MHA, which (with its archaic and demeaning terminology about people being kept ‘otherwise than under proper control’, etc.), gives powers of entry and, if required, of removal for further assessment. This my my hobbyhorse, but there are other, possibly less controversial examples, such as DoLS and Guardianship being used in conjunction.

    There’s some mildy baffling caselaw about which Act applies when (it indicates that the MCA should not be used to authorise treatment of mental disorders and is thus not a softer option or an alternative to the MHA).

    I’m sure we’ll all eventually understand how the two work Acts together. I am suspicious and sceptical of people who represent the differences as a huge gulf or a legal minefield.

  5. Wow, you have quite a good Mental Capcity Act. In the Netherlands, it is relatively easy to obtain guardianship and then it is up to the guardian to make sure the person under guardianship is enabled to make their own decisions as much as possible. Severe overspending is even a reason for guardianship when there is no mental disorder.

  6. Thankyou very much for taking the time out to address my questions, its very helpful as a student to be able to access information and advice ‘from the ground’ so to speak and hear examples of how the acts interplay in mental health social working. It’d be great, on a personal level to get my third year statutory placement with a mental health team or adults team with MCA assessments to conduct, prior to qualification, however I wont be holding my breath from the drastic drop in student placements I read about in comm care. Thats why i cant state enough how appreciative I am of any advice and information from practitioners, it helps to be better positioned for competent practice upon qualification, even if i havent directly experienced a cmht or the like on placement.

    I think my lecturers advice that the two acts are “completely seperate and not to be confused”, was probably more to do with the fact that some class members were attributing mental ill health with mental incapacity as in one and the same thing.

    Anyways ‘ll leave it there, thankyou again for your time


  7. Hello Mark
    I sort of agree with you lecturers. No-one should conflate having a mental health issue with a lack of mental capacity (the CoP states this clearly). However, my experience is that the MHA and MCA intertwine in practice. The same person with a dementia held under the powers of the MHA in hospital, can and should be considered for MCA / DoLS powers to support a discharge care plan specifying residence in a care home.

  8. …and of course a best interests decision under MCA that someone should live in a care home rather than at home can’t be forced on a person who is resisting. I would say you need the MHA – S.7 or 135 for that.

    Then there is the MHA/DOLS interface as well which is a whole new topic on its own!

    What you have described is what I do very frequently too. One thing I do at times is to ask the person to remember what we are discussing and then say what it is clearly. I stress the importance of remembering it and then check in 2 or 3 minutes to see if it has stuck. If not then it gives you a bit of an idea about how well information is being retained.

    In respect of your article about decision makers; after having some struggles with the local NHS MH team we now try to assess capacity and have best interests meetings together and could make a decision together if need be – which the CoP allows I believe.

  9. Hi Mark in our patch and in my experience the two acts have become confused because of the name in part people assumed that it was the job of Mental Health teams to look at Mental capacity issues it should of just been called the Capacity Act, what should be remembered is if the criteria for detention under the Mental Health Act you can’t use the Mental Capacity Act. It should always be the decision maker who carries out an assessment under the capacity Act.

  10. I stumbled across your blog today, after fruitlessly searching for some clarity into how capacity is assessed. My mother has bi-polar disorder and has been detained under the Mental Health Act now almost continually for six years.

    She received a large lump sum after my parents’ divorce but she tells me she isn’t sure where it all is. I am keen to ensure that her money is safe and can all be accounted for. She is an extremely intelligent woman, with phenomenal recall for events in my childhood and adolescence (I am now 32; she is 61). But she is becoming more and more withdrawn and institutionalised. When I visit she always asks cash for toiletries etc, but she can never tell me how much she has spent and what it has been spent on.

    I instructed a solicitor last year to help me with power of attorney issues and possibly obtaining a deputyship order. This is the email I received today: “The psychiatrist, Dr X is unable to give an opinion on your Mother’s capacity based on the fact that your Mother is not cooperating with her treatment and will not engage him in conversation or answer his questions at the meetings. Dr X feels that without your Mother’s cooperation he cannot judge whether she doesn’t have capacity to answer his questions or whether she is choosing not to speak to him and consequently, Dr X said that he will continue to try and encourage your mother to speak with him so that he can provide us with an opinion.”

    I can understand the reasoning for having the Mental Capacity Act, but am finding the whole process so frustrating, especially given how long she has been detained for.

  11. Thanks for all the comments – and to Guilsfield for answering Mark’s questions!
    Cat28 – I can completely understand your frustration. Without obviously knowing any details, I would think that the Court of Protection (although that is an interminable process) would be able to help with an application and to make a decision.
    Obviously your solicitor will be able to advise a lot better than me. I wish I could say something more useful.

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