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.
Professional bodies and forms
Court of Protection
The Court of Protection (CoP) Form 3 refers to a mental capacity assessment simply as an ‘assessment’. In doing so, it does not formerly state the number of steps or stages that are required and bound together by the causative nexus. Rather, Form 3 breaks the assessment down into a number of clearly defined sections, numbered 6.1 – 6.8, all of which cover the necessary criteria. This includes support provided under Principle 2 of the Mental Capacity Act, and other recommendations that could be explored to enable capacity.
Deprivation of Liberty
Meanwhile, another key form used by mental capacity professionals is the Government Deprivation of Liberty Form 3. This form is completed by a Best Interest Assessor and addresses capacity for the specific decision of ‘Care and Treatment at a particular care/nursing home or hospital’. Just as with the CoP Form 3, the DoLS Form 3 describes a mental capacity assessment simply as an assessment.
However, what makes things confusing here is that the form then breaks down the well established two-stage test of the Mental Capacity Act into three separate stages. While this approach has clearly been taken to make form filling easier and to ensure appropriate detail is given to the causative nexus, it can lead to a point of confusion around how different professionals refer to what is ultimately a two-stage test.
It is also important to note that certain regions across England and Wales have updated versions of their DoLS applications that account for changing case law. It is therefore important to ensure that the BIA is using the most appropriate version of the form.
Unfortunately, there is quite a lot of misinformation around the Mental Capacity Act available online. A quick search of terms relating to Mental Capacity reveals several sites that refer to the ‘four stages’ of an assessment. Clearly, this information is incorrect. However, it can be quite confusing for individuals who may not have the full training and expertise in the field to be able to identify this error.
It is therefore essential that all professionals only make use of trusted sources online. If ever there is any doubt, always go back to the original official government documents and professional guidelines. If you need further support, make use of companies who have a proven track record working in the field of Mental Capacity, and who have the appropriate training and accreditations.
For further information on Mental Capacity Assessments, including guides on the Mental Capacity test as well as the fundamentals and how to prepare for an assessment, please browse our website. If you would like further support, we also offer bespoke training for professionals; we can also carry out assessments on your behalf. To find out more, please do get in touch.