In this blog, we will work through an example mental capacity assessment for an individual making a complex decision. This case study is based on a real-life example reviewed in the wake of the Covid pandemic. At each stage we will present the information as it was presented to us, followed by specific comment relating to the assessment process and steps that could and in some cases should have been taken to improve the quality of outcomes.
All data has been anonymised and a number of details have been changed in order to ensure confidentiality and data protection.
The individual to be assessed – referred to from here on as ‘P’ – had very limited verbal skills following an acquired brain injury from an early age. P usually made use of an Eye Gaze to communicate, however, this was not working at the time of the assessment, having been broken for a number of weeks. Therefore, P had to make use of low-tech aids to communicate his thoughts, feelings and intent, which he did with support of care staff.
At the point of the assessment, P was having a trial run within a new accommodation that had been unexpectedly extended due to Covid. The reason for moving was recorded as his wishing to be closer to his partner.
The assessment itself was to primarily focus on accomodation. However, there was an additional consideration, which was to assess P’s mental capacity to directly manage his inheritance, which was presently in a Trust Fund. P was reported to wish to have full control of his finances, seeking to use his money to have a blessing on his relationship amongst other long-term plans.
Prior to this formal assessment, a Health Care Professional had met with P and staff on two occasions to discuss these topics, as well as having held a joint meeting with P and their Trust holder. Records show that no Speech and Language Therapist, Advocate or professional Interpreter were referred to in this time.
It was unclear whether any mental capacity assessments had occurred prior to this point. This may be because the new home P was based in was in a different county, and he was therefore being supported by a new team.
Comment: Given this background information, the first thing we should investigate is whether the assessment could be delayed until the eye gaze was fixed. This would help support the individual’s autonomy and accuracy of responses. It would also reduce the risk of undue influence. We might also consider whether a Speech and Language Therapist could be referred to in order to support this specific assessment.
Prior to the MCA being carried out, P was given a varied list of pre-prepared responses to support communication. This included a list of feelings, the names of relevant people and places, plus other response statements.
Staff were a prominent point of support throughout, being familiar with expressions and sounds to then use a process of elimination to communicate with P, clarifying responses.
Comment: The staff who supported P were unnamed, and with no evidence of consideration as to their possible influence upon the assessment. It was evident they were actively supporting interpretation; however, how reliable were their responses? Did P consent to these specific staff to attend and help?
The decision to be made was identified as: ‘Does P have the mental capacity to make decisions around receiving inheritance and moving home’.
Comment: A mental capacity assessment is decision and time specific. Therefore, these two decisions should have been separated into two separate assessments, arguably to be conducted on two separate occasions in order to reduce risk of confusion and aid attention.
Furthermore, on reviewing this case, I found that there were no notes to introduce the assessment, with no explanation as to why the assessor was asking particular questions, extending the accommodation trial, or otherwise. The assessment was taking place with implied consent from attendance.
The Mental Capacity Assessment
In this section we have included each key area of the MCA, followed by the assessor’s notes and then our own comment.
Does the individual have an impairment or disturbance of the brain that directly impacts their cognitive processing, impairing decision making?
P has had an acquired brain injury since the age of 5.
Comment: Firstly, this short sentence identifies the impairment, but not does expand to explain how it impacts their cognitive functioning surrounding decision making. As a result, it implies a lack of ability based upon their health condition. This goes against the first principle of the Mental Capacity Act, which presumes capacity. One might also argue that this comment from the assessor is discriminatory in nature, as it uses a person’s named health condition alone as reasonable grounds for assessment, without a breakdown of justification.
As a side note, this assessment did not use the inverted MCA format. As we have discussed previously in our blogs, the updated Case Law regarding this matter was concluded in 2021, and continues to only slowly filter through to practice.
Does the individual understand the relevant information around the decision?
The Health Care Professional asked if P wished to remain in this new accommodation – ‘Yes’
The Health Care Professional asked P to indicate the name of the place they wished to live at – P was able to indicate the present accommodation from the list.
The Health Care Professional asked P to indicate why he wished to move: ‘I want to live closer to my partner’.
The Health Care Professional asked if you are to look after your own inheritance, who will be responsible to pay for your care? Two options were given – response selected both options.
Comment: This short dialogue suggests a limited conversation around the understanding of these two highly complex decisions, as the professional has not extrapolated to inform the reader of the assessment otherwise.
The health care professional concluded that P did not have understanding, implying a lack of understanding for either accommodation or taking financial control of his inheritance. Professionally I strongly disagree with the lack of understanding on either account, as there is enough evidence presented in this assessment to justify this claim. Especially considering the fact the assessment only seemed to include a single question on inheritance, without ever establishing whether the individual understands what inheritance actually is.
In this case, I would argue the health care professional’s poor line of questioning and support has not enabled P to demonstrate capacity, which could be resolved with improved preparation and documentation.
It might be that the health care professional only recorded what they felt were key points, however, this needs to be clearly indicated with a justification for their rationale of not meeting the threshold for understanding.
Is the individual able to retain information relevant to make the decision?
The Health Care Professional asked P to indicate from the list what subject was they were discussing. P is reported to have selected ‘we were discussing my decision to move to a new care home’.
Comment: There is no reference to P’s free recall regarding either topic of assessment or whether P was provided with information at any point. If P was provided with information, there is no evidence of this being assessed for recall, for example, by repeating the question several minutes after the information has been provided.
The matter is further complicated by the fact that the assessment is being conducted for two separate elements (which it shouldn’t have been), the second of which – inheritance – has not been identified in this section.
This stage of the assessment further highlights the impact of not having P’s eye gaze available in order to freely communicate his thoughts, views and wishes in his own words.
We should also note here that the professional did not state if this criteria had been met or not in their opinion.
Can the individual use the relevant information to weigh up the decision?
The Health Care Professional asked ‘How do you feel once you have moved to the new home?’ P selected ‘happy’ from the list.
The Health Care Professional asked ‘How would you feel being further from your family, who will not be able to visit as regularly?’ P selected ‘okay’.
The Health Care Professional asked ‘If you move to Y your social care provider will change. How do you feel about this?’ P selected ‘okay’.
Comment: The lack of reference to inheritance at this point, makes reference to it within the decision being addressed null and void.
In terms of accommodation, I again do not believe the range of questions and support of communication present has fully supported P to comprehensively weigh up this decision. There is no comparison between the two homes in terms of staffing, residence, activities, room or facilities. Nor is there any clarification of what is important for P in his decision making process.
We must also assume that no alternate homes have been considered, as there is no clarification of this matter either in the assessment report, nor in the supporting notes.
Can the individual communicate their decision?
P has a diagnosis of an acquired brain injury. As a result he has verbal communication challenges, using an Eye Gaze to communicate. P is unable to write down his views due to reduced fine motor control. P’s support staff use elimination questions to confirm and clarify all communication. P was supported within this assessment with a visual aid of options as his Eye Gaze remained out of action.
Comment: In terms of communication, I recognise the positive use of visual aids and elimination questions to facilitate a meaningful interaction. However, there is a major question mark here around why an urgent follow-up has not been completed for his Eye Gaze.
Again, the assessor has not indicated their professional opinion of whether P met the threshold for communication.
The Health Care Professional summarised that P had a basic knowledge and retention, stating that P has the mental capacity regarding his permanent accommodation, but it was unclear regarding capacity for his inheritance.
Comment: There is no discussion of any significance around P’s inheritance or indeed his understanding of the various pros and cons. There is also no recognition at all around whether P presently manages his own finances. As such, there is no justification for suggesting that his capacity to manage his inheritance is ‘unclear’.
As you will gather, there are key failings in areas right across the assessment. Not least, it leaves out the critical fact that if P were to gain his inheritance directly out of his Trust, he would have to pay for his accommodation and his insight to the impacts of this.
Thankfully, P’s case has since been reassessed on both fronts in separate assessments, with appropriate support in place for P, who had his Eye Gaze and his chosen key worker present.
Consider the big picture
When documenting, I would encourage you to ‘step back’ and ask yourself: if another person were to read this, would they gain the full picture?
If I were conducting this assessment myself, I would also ask: if I am called about this case, by a colleague or otherwise in a year or mores time, is there enough documentary evidence to refer back to?
Remember: If something has not been documented, then it effectively has not happened. Our record keeping helps to safeguard and protect those we work alongside and ourselves.
In a follow up blog, I will provide two initial proposed lines of questioning that I have formed from reflection on this case, using some of the process we discuss in ‘What questions should I ask?’