Communication is an absolutely vital part of the Mental Capacity Act (2005). If we are to support capacity effectively then we should do everything in our power to ensure good, effective communication that is adapted to the needs of the service user. This may mean taking extra measures to aid the process of communication, to consider environmental and/or external factors, and also to make allowances for any fluctuations in an individual’s ability to understand.
The second principle in action
The second principle of the Mental Capacity Act states that we should take all reasonable steps to support capacity wherever possible. As such, an assessor should be sure to liaise with the care team, review relevant records and familiarise themselves with adaptive methods of communication before the assessment takes place.
This isn’t just good practice in terms of the Mental Capacity Act, but also upholds the professional code of ethical conduct, by ensuring the service user is treated with respect and dignity, and in a fair and inclusive manner.
The level of support will naturally vary depending upon the individual. In some cases, it may just include the careful consideration of the questions to be asked; yet in other cases it may require the assessor take into account the location of the assessment and even the time of day, in order to reduce distractions and improve focus. The assessor should also be sure to confirm that the assessment is being conducted in the user’s first language, and arrange a suitable interpreter or translator if needed.
Whatever the case, all steps taken to support clear communication and enable capacity should be noted within the final report.
For those service users with complex needs, the assessor may need to draw upon tools to aid the process of communication. These may include communication grids, PEC tools, easy-read guides, talking mats or visual aids. It some cases it may be that these items need to be sourced in advance in order to help facilitate the smooth running of the assessment.
In my own practice, I bring a selection of communication aids that I prepare in advance, depending on the individual’s needs. For example, laminated cards with a range of options for each question that they can select by blinking / nodding / pointing etc. When adopting this approach, it is good practice to ensure that the order of options are varied with each question. This helps us to confirm that the individual is making a clear conscious decision to select a particular response. The assessor should also be sure to include a full range of options for the questions being asked, including options for ‘other’ and/or ‘something else’.
Of course, these sessions will naturally take longer to carry out, so it may well be that they need to be done across several sessions, rather than just the one. Again, this is to ensure that the individual’s needs are supported, and that they aren’t tired out or caused undue stress by the process.
Indeed, with any mental capacity assessment, the individual’s needs should always come first. Just because the individual may communicate in a different format or on a different level, does not mean that they do not have sufficient capacity. It is our duty then to give each individual the time and support they need to participate in the process in a meaningful way. We should never underestimate them; nor should we make assumptions about their capacity based on the fact they are ‘non-verbal’.
As a final thought, we should hold caution on using Communication as a key determiner for capacity. By which I mean that greater weight and justification should always be held upon an individual’s Understanding, Retention and ability to weigh up a specific decision at a specific time to demonstrate their Mental Capacity for that decision. I would argue the responsibility to ensure person centred appropriate communication is upon those supporting the individual to express their opinion. The Capacity Guide and other core resources that provide professional direction upon this criteria, support this observation, in that Case Law directs only to rely upon this determiner in specific complex cases such as locked in syndrome. I would personally challenge this, through asking if the individual’s communication needs and proportionate communication aids have been fully assessed and considered before reaching this point of determining capacity, eg. has augmentative tech or other aids been explored. For further discussion on this specific area, please see one of our upcoming blogs.