The Mental Capacity Act in practice.
Under Article 5 of the Human Rights Act, every person has the right to liberty and security. However, there are certain circumstances in which it may be necessary to deprive/restrict someone of their liberty in order to protect them should they not have the capacity to consent to their treatment or care at a specific placement.
According to government guidance, an LPA certificate provider is an impartial person who confirms that the person completing the LPA understands what they are doing…
The first principle of the Mental Capacity Act (2005) states that we must always presume capacity in the first instance. This means that we should always start from a position where we presume that an individual has the ability to make a decision (i.e. has capacity), rather than the other way round.
In a recent blog we explored the decision-specific nature of the Mental Capacity Act (2005) in practice. In today’s blog, we will explore how this applies to Lasting Power of Attorney (LPA).
When assessing Mental Capacity, it is our responsibility to inform the person we are assessing of who we are, why we are visiting them, and the purpose of the assessment.
Fluctuating capacity is when a person’s ability to make a specific decision varies over time. This is usually due to a health condition that disturbs…
In healthcare, executive functioning is an umbrella term that refers to the cognitive functions of the brain that support complex thought processes and processing skills,…
According to the Mental Capacity Act (2005), a Mental Capacity Assessment is made up of two stages, functional and diagnostic. It has therefore been referred to as the ‘two-stage’ test. However, a quick browse online, alongside discussion with different professionals, reveals quite a bit of misunderstanding around how many stages there are and when these stages apply. This is perhaps due to the inconsistent way that assessments are referred to by certain institutions and professional bodies. There also seems to be some confusion between the four steps of the functional stage of an assessment, and the two stages of the overall assessment.
Clearly, terminology is important, and we should make efforts to ensure we are always using the correct terms.
A standard mental capacity assessment (also known as the two-stage test) is usually carried out for a specific decision at a specific time. It is completed prior to the decision being made if there is either a ‘reasonable belief’ that an individual may lack capacity, or to reduce the risk of someone challenging the person’s capacity to make the decision at some point in the future.
Meanwhile, a retrospective mental capacity assessment refers to a traditional assessment of capacity for a specific decision, but for a decision made historically. Examples might include a Lasting Power of Attorney submission signed and submitted the previous month, or a financial gift made to a family member or friend several years in the past.
We all make many thousands of micro-decisions on a daily basis, from the way we make a cup of tea to what we watch on TV. However, when it comes to decision making, the Mental Capacity Act (2005) is ‘decision specific’. This means that it relates to a specific decision made at a specific time. It does not refer to decision-making more broadly. This raises the question: how specific do we need to be when we assess capacity?