When assessing mental capacity, it is vital that the assessor is aware of any persons who may have an impact on the individual’s decision-making.
If is therefore good practice to ask friends and family members to leave the room for the duration of the assessment, unless they are needed to put the person in question at ease. In these situations, the friend or family member should be advised to keep their communication to the absolute minimum so as to avoid exercising undue influence over the person making the decision.
In cases where the assessor believes that someone may be intentionally or unintentionally trying to affect the outcome of the decision, the assessor should firstly directly ask the person being assessed to explore their rationale and whether there is an influence present. It may be of further benefit to complete a secondary assessment at a different time and date. If concerns remain, or become clearly identified, then a safeguarding alert should be raised, and the report of capacity should include this information of concern. It may then be appropriate to proceed to the Court of Protection.
Putting the individual first
While we of course recognise that in many cases, friends and family may seek to positively protect their loved one, the final decision remains for the individual, and for the individual only. If the person being assessed if found to lack decision-making ability for the specific matter at the specific time, the next step would be to proceed to a Best Interest Decision, keeping the individual’s views in consideration.
For further reading in this area, we recommend the following resources:
- Edmonds Marshall McMahon’s blog
- Witan Solicitor’s blog
- Weightmans Solicitor’s blog
- Mills and Reeve Blog
For further help and support, we offer a range of training and consultancy services in the realm of Mental Capacity and Mental Capacity Assessments. For more information, please contact us for a quote and case discussion.