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Example Mental Capacity Assessments

Man with learning disability getting married

When I have sought to learn more about the Mental Capacity Act (2005), I have found a unexpected lack of information on precisely how to complete an assessment. Having attended many courses on Mental Capacity in my time, it still surprises me just how many courses fail to even set out what to ask, how much to record, what information is relevant and what to do next.

This has led us to bring together this information to help make Mental Capacity Assessments more accessible and give professionals confidence across the fields while Promoting, Protecting and Partnering with the person who is at the centre of this process.

For this commentary of the standard Mental Capacity Assessment, we have provided two PDFs which I would suggest to have at the ready to look at before you read any further:

Please note: neither example is based on a real person or real home. However, they do both reflect common experiences observed in practise.

Why are these Mental Capacity Assessments different from what I know?

Before looking at the worked case studies for a poor (red) and fair (yellow) Mental Capacity Assessment, I feel we must first discuss the elephant in the room: why have I inverted the assessment?  For those who are less familiar with the Mental Capacity Assessment, most templates identified online or through your organisations, will have stage one being does the individual have a disturbance or impairment of the brain that affects their ability to make this specific decision? Followed by stage two that breaks down the specific decision-making into Understanding, Retaining, Weighing-up and Communicating, before concluding if the person has or has not got Mental Capacity to make the particular decision.

However, based upon a number of key cases through the Court of Protection, the Mental Capacity Act codes of practice has been, in effect, made redundant or out of date, therefore we should focus on what the Mental Capacity Act (2005) states while the amendments and updates are resolved.

The act stipulates that we start by establishing, as the principles guide us:

  1. Can they make the decision for themselves? This is found through the person’s ability to understand, retain, use and weigh up the relevant information then communicate the decision. Which I should add, must be supported to do so, by any reasonable adjustments, which include but are not limited to providing clear concise information, Makaton visuals, translator or sign language interpreter, graded communication strategies, objects of reference, talking mats, written format etc.
  2. If they cannot make the decision for themselves, do they have a disturbance or impairment in their cognitive functioning?
  3. Before finalising this assessment by asking, is the person’s inability to make the decision directly caused by the impairment or disturbance to the brain (causative nexus)?

Worked examples: Assessments in practise

Decision being addressed, context and support

At this point I would encourage you to have a closer look through the two examples provided, ask yourself what are the key differences, what works well, what could be improved? Is there anything missing? If you have completed any Mental Capacity Assessments previously, what would you have written?

So, lets have a closer look at our example Mental Capacity Assessments….

Firstly always consider the best time of day that suits your individual; are they early risers who are more alert and responsive first thing or can they take time to get going, being better to engage post lunch, do they present with sun downing? Make sure the time suits the person, so that we are supporting capacity in every way possible.

Next, what is the specific decision? Over the years I have seen this filled out in a number of ways, from tick boxes to cover multiple options to a single work of “medication”.  It is so important for each mental capacity assessment to be completed individually to the person and that decision. On looking at example one (red) I would recommend it needs a little bit more than stating “use of lap strap”. If as a health care professional or advocate I was reading this, I would be asking what chair is this for, when is it being used and for what purpose? So, on comparing to the example two (yellow), it can be seen they have addressed these questions, expanding to specify it is for his wheelchair to reduce risk of falls. I would recommend taking a step back and consider your assessment, what is the decision you are addressing? If looking at medication, is it for the individual to be supported to take their own medication with staff supervision, is if for their consent for staff to fully support medication provision or are you asking if they are able to take medication independently?

In the standard assessment templates provided, I have added the section “how has this individual been supported?” This is to help us to refocus our attention onto the 5 Principles, especially that of supported capacity, that we have a responsibility to enable that individual to engage and demonstrate capacity if they are able through all reasonable adjustments. This ranges from the common-sense items of making sure that they have their hearing aids in and working alongside glasses being clean and available if needed to large print information, graded options to point to or someone to translate/interpret.

Elderly lady watching video supported by nurse in mask.

Two stage test

Looking at the two stage tests for examples one and two: I have included a number of regularly seen errors. The biggest of which being that a lot of the information in example one (red) is irrelevant to the decision of using a lap strap for his wheelchair and suggests to me that they have not sat down very long to speak with “Jacob”; they have spoken about his personal care, community and medication amongst other elements which are not necessary to this assessment. While with example two (yellow), “Luke” they have ensured they are focused on the relevant decision and have boosted their records tremendously by recording some thing of what this gentleman has said and how he has responded. This helps to provide a realistic picture of his knowledge, recollection and analysis of this specific decision, allowing for comparisons over time, accessibility, accountability and professionalism.

In both of these examples, we remain unsure of what has been asked, or how they have graded the interactions – did they use open or closed questions, did they provide information or use verbal/visual prompts, did they give options to select from? As there are no standards available at this time for mental capacity assessments, I would suggest example two (Yellow) does a reasonable job at addressing these areas and is a fair standard to aim for in everyday decisions within care environments. However, there are a lot of simple ways to take this assessment to the next level and further.

I would note that neither of these examples have clearly stated “Yes” or “No” to being able to understand, retain, weigh up or communicate.  Without this clear statement of “X can understand relevant information surrounding the decision to use his lap strap when in his wheelchair” it might be ambiguous to an outsider reading, especially if all areas discussed have not been recorded. Therefore, I would recommend for a standard mental capacity assessment to both give examples from the assessment, describing and quoting responses, as well as specifically concluding whether they can understand, retain, weigh up or communicate information for that specific decision.

To add a little side note here, communication is one to be very cautious around.  Wherever possible I would ask the individual to put it in their own words or ask what they understand about the topic you’ve been asking. I would take every opportunity to support a person to communicate, including that of old-fashioned pen and paper, typing, augmentative technology, sign language, translator, visual aids, of use eye movement communication tools or only if necessary closed questioning. Closed questions should be a last resort, and if using this method, I would ensure you have a comprehensive list of graded questions with a range of options to choose from, repeating questions to check consistency of responses. A person should not be assessed as lacking capacity based purely on any challenges to communicate, if unsure, I would encourage to seek a second opinion to assess.

Moving onto the second stage, where it asks if the person has an impairment or disturbance of functioning and if so, is this the directly related to their impaired decision-making. We can see a big difference between the two examples; in the first (red) the assessor has stated two conditions with no indication of how it affects the person – how do they present? Does it impact their cognitive functioning? If so, how? By merely stating the conditions, it undermines and blatantly ignores the 5 Principles of the Mental Capacity Act, by presuming the individual’s condition is enough to justify a lack of capacity.  Whereas in the second example (yellow), they have identified that “Luke” has a two long term conditions and is free from any infection at this time, expanding to stipulate that it reduces his concentration, affects retention and his ability to sequence or process steps. The Mental Capacity Act (2005) refers to this as the causative nexus; a simple expansion to demonstrate the link between condition and why/how it has impacted their decision-making abilities is a necessary part of every assessment.

Summary of points for a good Mental Capacity Assessment

  1. Be person centred – what does your client need to support them and when is it best to assess?
  2. Be prepared – if you know your client needs their hearing aids, check before sitting down to assess, disruptions affect focus and engagement, so have everything at the ready to help the person. This also refers to having a plan ready in terms of what questions to ask for the specific decision, make sure your happy on the direction you are going and remember you can deviate from this, it is a guide, a starting point to help assess
  3. Keep on topic – discuss only examples and conversations directly related to the specific decision being addressed
  4. Give examples of what the person said or how they responded to questions
  5. Be clear in whether they can or can’t understand, retain, weigh up or communicate information for that particular decision
  6. Be specific in how their impairment or disturbance of the brain affects their ability to make this specific decision (or that fancy phrase – the causative nexus)

I hope you have found this blog helpful. If you would like further information on our training courses, which include how to take your assessment up to the next level or would like to request a consultation, please do get in touch and keep an eye out for further blogs.

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