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.
Introducing the assessment
When we introduce ourselves, we should take care to frame information in a meaningful way that can be easily processed and understood.
For example: ‘My name is Nicky and I am an Occupational Therapist. It is my job to help support people’s recovery. I do this by engaging in meaningful activities, which may include helping people to re-learn skills, or even develop new skills. I can also provide equipment to help with day-to-day activities.’
Of course, there is a lot more to the role of an Occupational Therapist than I have included here. However, it gives a fair overview of the basic concepts. I might then support my introduction with objects of reference, leaflets, and potentially even sign language / Makaton or similar if the person being assessed (P) is hard of hearing, or struggles with understanding.
At this stage, it is really important that we take time to inform P about the assessment that is about to be carried out. This includes what it is, why it is being carried out, and what question is to be addressed. This is an essential part of best practice as it helps P to engage with the process. Failure to do so would also be in breach of Principle 2 of the Mental Capacity Act.
To help us work through this process I would like to introduce a fictional character, Melman the giraffe…
- Melman is 23 years old and lives in ‘shared lives’ accommodation. He has a large support network and an active social week, which he engages in with support.
- Melman has a history of Generalised Anxiety Disorder (GAD) and Complex Post Traumatic Stress Disorder (C-PTSD) following a plane crash near to Madagascar. Melman also regularly experiences Hypochondria regarding his health.
- This culmination of conditions can impair his decision making at times. As such, it is important to take note of how information is framed when it is presented to him. Melman likes to have access to factual, evidenced information to help him understand the facts when he comes to make important decisions.
- Melman has recently experienced a fall, and possible seizure. As such, he is due to have an MRI scan at the hospital. Melman’s support staff are concerned that he may lack capacity to make an informed decision for this scan at this time. They are also concerned that his current presentation would make a Mental Capacity Assessment difficult. As such they don’t want to introduce it as his anxieties are impairing his ability to engage in discussions.
Relevant case law
In the case of LB Wandsworth v M & Ors (2017), Judge Justice Hayden unpicks this matter in depth. In it, he states:
‘having listened to the evidence from those who undertook the assessment I am far from satisfied that they explained the purpose of the assessment to J. Indeed I would go further, I do not think they did. One of the key principles of the Mental Capacity Act is that a person should not be treated as unable to make a decision until everything practicable has been done to help the person make their own decision (see s1 (3)). The code of Practice dedicates an entire chapter to providing guidance and prompt consideration of a range of practical steps which might assist in this objective. It seems to me to be fundamental to the assessment process that P is informed of the purpose of the assessment.’ (paragraph 47)
‘As I said in the course of evidence, if it had been properly explained to J that an assessment of his capacity to take decisions as an autonomous adult was being tested I would have expected a voluble and unambiguous response on his part, none is recorded.’ (paragraph 48)
‘It seems to me that a prerequisite to evaluation of a person’s capacity on any specific issue is at very least that they have explained to them the purpose and extent of the assessment itself. Here, that did not happen. In my view, it is probably fatal to any conclusion. In any event, it, at least, gravely undermines it. I have very much in mind PC and Anor v City of York Council  COPLR 409,  EWCA Civ 478 where Peter Jackson J (as he then was) made the following observation:
‘… there is a space between an unwise decision and one which an individual does not have the mental capacity to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual’s autonomy operates.’ (paragraph 49)
The need to explain the purpose of the assessment was again highlighted in another case held before Judge Justice Hayden in DP v London Borough of Hillingdon (2020) and can be seen in several others besides. This demonstrates the foundational nature of this requirement, which is pivotal in supporting capacity, by starting in providing the relevant information, including the purpose of the assessment.
From a professional standpoint as well, I would add that explaining the assessment is also central to helping us build a professional therapeutic connection with the individual to enable a respectful, trusting working relationship that is person-centred and inclusive.
Explaining the assessment
To return to our case study, it seems clear that the support staff should conduct a Mental Capacity Assessment as normal, including the phase at which they explain to him about the assessment and its purpose. Failure to do so would deprive him of his rights.
As such, they should approach the process in the normal way that they would for any other assessment, ensuring that all reasonable adjustments are made in advance, that there is a clear decision being addressed, and that there are appropriate resources to communicate information about the decision. They should also identify key questions relating to the assessment that need to be covered in the process and that will support the content and structure of the assessment.
This process should include information about the Mental Capacity Act (2005) and what a Mental Capacity Assessment is, thus supporting Melman’s rights, and his capacity.
While Melman may have several conditions that may prove a challenge for an inexperienced assessor, this does not mean that any element of the assessment should be ignored. Introductions and explanations should not in any way be rushed. At each stage, Melman should be given time to process what has been said, to respond to points and to ask questions before proceeding.
Every element of the process should be recorded clearly, in line with best practice guidance.