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Reflecting on changes to the MCA Code of Practice (Part 4)

Supporting capacity with augmentative communication aids

In the fourth part of our blog series on the proposed changes to the MCA Code of Practice, we look at Chapter 4, and the process for assessing capacity.

Assessing Mental Capacity

As we discuss on our Assessment webpages and several of our blogs, Mental Capacity Assessments have now formerly moved to an ‘inverted test’ model. This follows a court case in 2021 (Local Authority vs JB) in which the judge said that if we are truly upholding the five principles of the MCA, then we should start from a place of presumption of capacity. This means taking the appropriate steps to support capacity where possible, and to determine prior to the event any impairment or disturbance of the brain which may directly impact an individual’s particular decision-making ability.

When to assess?

In the proposed changes to the Code of Practice, there is a clear distinction between the process of ‘considering’ capacity and ‘assessing’ capacity. In this case, the process of ‘consideration’ refers to the critical reflection needed to determine a justifiable reason to assess in the first place.

This again brings us back to the five key principles of the Mental Capacity Act, in that capacity to make a specific decision should be presumed in all cases, and assessments should only be carried out if there is a reasonable doubt about the individual’s capacity to make a particular decision. 

However, we should note that there are several circumstances in which it might still be necessary to assess for capacity, even if there is not case of reasonable doubt. These include:

  • A decision that may be challenged at some point in the future, such as making a Will, allocation of a Lasting Power of Attorney, or making advanced decisions.
  • To determine Mental Capacity for an individual’s care and treatment plan in order to ascertain if a DoLS application is necessary.
  • If the decision is particularly out of character and/or puts the individual or others at risk – remembering of course Principle 3 of the Mental Capacity Act, that an individual has a right to make a decision others may deem unwise.

Reviewing assessments

In cases where an individual is assessed to lack capacity, the assessment should be reviewed at regular intervals, including any associated Best Interest decisions to ensure they remain relevant, proportionate and appropriate.

There is no ‘hard and fast rule’ as to frequency of reviews, so it will often be down to organisational policies and procedures. In cases where there is no foreseeable change in cognition or circumstances, then a yearly review is a reasonable time frame. However, an individual should always be re-assessed if there is any notable change in cognition – whether it be an improvement or decline – in line with best practice.  

Carers and activities of daily living

Pages 64-65 of the draft Code discuss specifically the process of assessing capacity for activities of daily living. While carers do not have to be experts in assessing capacity, in order to protect themselves from liability under the MCA (section 5), they must hold a ‘reasonable belief’ that the individual being cared for lacks capacity for a specific decision that they may make on their behalf. The carer should therefore be able to describe steps taken to support capacity prior to acting in Best Interest of the individual.

How to establish a ‘reasonable belief’ will vary depending on the individual, the context and the decision to be made. However, the draft Code offers a series of questions that are designed to help care teams formulate their rationale.

When should professionals be involved?

While anyone can potentially carry out a Mental Capacity Assessment, the draft Code recommends care teams call upon professional support for complex or major decisions that may have lasting consequences for the individual. These include:

  • Decisions relating to placement or treatment.
  • Decisions that may be challenged in the future.
  • If there is any conflict of interest between the assessor and individual.
  • Cases where the individual changes their views depending on who they are engaging with.
  • If the individual is making repeated high risk decisions that make them vulnerable.

There is further a legal requirement to complete a professional assessment in specific circumstances including:

  • The decision to complete a legal document, such as a Will or LPA application, that may be contested at a later point.
  • Whenever the Court of Protection has to decide if a person lacks capacity in a certain matter.
  • If consideration is being given to deprive a person of their liberties.

Bringing Case Law into the Code

Despite the legal requirement to ‘invert’ the mental capacity assessment, this change has taken a long time to filter through to practice. There have also been several other high profile cases that have replaced large portions of the original Code that hasn’t been updated since it was first published.

It is therefore heartening to see that the new draft Code of Practice integrates the many changes to Case Law, while also simplifying some of the explanations. This includes the need for including the separated questions to form a three-stage test – asking if the impaired decision making identified is directly linked to the identified cognitive disturbance (causative nexus). This has been one of the most common errors I have noted in practice in the last few years, and so with this clear direction stipulated in a legal document, the care and support of our most vulnerable people should be improved.

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