When applying the Mental Capacity Act’s five core principles, the assessor should make reasonable adjustments to help the individual process information.
In broad terms, the Mental Capacity Assessment (or Two Stage Test) must address the following:
- Can the individual make the specific decision for themselves?
- Can they understand information relevant to the decision?
- Can they retain information relevant to the decision?
- Can they weigh up relevant information in order to make the specific decision?
- Can they communicate their decision (in any format)?
- Is there an impairment or disturbance in the functioning in the person’s mind / brain?
- Is it a formal diagnosis?
- If not, what is the evidence to support this?
- Is the person’s inability to make the decision caused by the identified impairment or disturbance of the brain? This is also known as the causative nexus. As assessors, we must be satisfied that the individual’s inability to make a specific decision is directly linked to the impairment or disturbance of functioning.
How to prepare for a Mental Capacity Assessment
Step 1: Identify key questions
As with any assessment, preparation is key. Before the Assessment takes place, the assessor should identify essential questions related to the case that need to be answered in order ensure the process is person-centred, supportive, relevant and effective.
To help identify these questions, there are several resources available:
- ‘CMSL’ principle by Tim Farmer (2017)
- ‘Carrying out and recording capacity assessments’ by Essex Chambers 39 (2020)
- Certain councils and local public services also produce guidance
- Our own training courses and materials including our blogs offering help and advice
Step 2: Consider other factors
Once key questions have been identified, the assessor should also take the following key points into account:
- The environmental impact of surroundings (etc.) on the individual’s ability to process information.
- The best time of day for the individual being assessed
- What support can be given or adjustments made to enable decision making?
- Is the individual well, I.e. do they have any infection that might affect their responses?
- Are there any external influences or signs of duress?
If at any stage you are in doubt, you should keep asking questions until you are absolutely confident in the outcome.
We offer a range of in person and online training options to help care teams prepare for Mental Capacity Assessments. We can also conduct Mental Capacity Assessments on your behalf. For more information, please see our Services page.