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Capacity Assessments: Professionalism, Accountability and Best Practice

Patient consulting with doctor

A recent case held before the Court of Protection highlighted issues around the way that Mental Capacity Assessments are completed. In her conclusions, Mrs Justice Knowles highlighted the important role played by the Assessor – emphasising the need for accountability in the process, and for the Assessor to take professional measures to establish the salient information relating to the case the case.

Case context

In the case held in January 2024, the relevant person (P) had had previous decisions brought before the court, and was established to have capacity regarding engaging in sexual relations. However, she had been found to lack the necessary capacity in terms of decisions for residence, care and contact.

Subsequent to these hearings, the relevant person (P) fell pregnant. As such, decisions around residence, care and contact were put to review, as it was believed that in this new context, P may now have the ability to make supported decisions. This was based on the experience of supporting professionals who had reported evidenced steps of progress in terms of P’s understanding and engagement with the issues involved. 

For this new assessment, the same expert assessor was used, and they concluded that P continued to lack capacity for decisions relating to residence, care and contact. However, it appears that the letter of instruction to the assessor may have lacked clarity, as the professional requesting the assessment emphasised the need to relate the line of questioning to events surrounding the baby’s birth, rather than P’s present circumstances. It is noted that the relevant person’s engagement was supported, with consideration as to how to optimise and support purposeful participation within the assessment. However, P was ‘defensive’ and did not fully participate, which may have given an incomplete picture of capacity.

Following which it was agreed that the expert assessor would liaise with the social worker assigned to the case to discuss relevant contextual information and observations, to enable a more complete and accurate assessment of P’s capacity in relation to the decisions being addressed. In taking this information into account, the assessor submitted an addendum report, reversing their findings in respect to each of the three decisions. 

Accountability and best practice

In light of these developments, the original mental capacity assessment was scrutinised, and it was recognised that the letter of instruction to shape the assessment was unclear, and lacked the required precision of direction. As a result, the assessment focused on future changing circumstances, rather than present situation. For which the assessor had taken a misdirection. In such a situation, the judge noted that ‘it is not appropriate to make anticipatory or contingent declarations in the circumstances of this case’ (53)

 Perhaps, most importantly, Mrs Justice Knowles stated:

‘47. […] In my view, it would be beneficial if expert capacity assessors ensured that, as a matter of routine, they cross-checked their conclusions by looking at the wider canvas about how a person functioned and, if possible, by speaking to those who knew the person being assessed well. This is of particular importance when their conclusions may be at variance with previous capacity assessments.’

Re DY (Capacity) before Mrs Justice Knowles (2024) EWCOP 4: 47

Barrister Alex Keen refers to this case in a recent blog aptly titled ‘Triangulation and flexibility: taking capacity seriously in changing circumstances’ – emphasising the vital nature of completing assessments, for which this case highlights potential pitfalls. That if we are indeed striving to uphold a person’s autonomy and rights, we must start by ‘taking capacity seriously’ in all aspects. 

Key learnings from this case

It is the assessing professional’s responsibility to establish the relevant contextual circumstances regarding the specific decision being addressed. This requires application of all aspects of best practice and duty of care, including communication and consultation.  Within the assessment process for a specific decision, a professional needs to identify and validate a range of information in order to make an informed judgement.

Validation can often be obtained via relevant reports, and/or by consulting relevant parties. This process should seek to:

  • Establish the specific decision(s) being addressed and viable options being weighed up
  • Establish the basic salient information to the decision(s), including relevant context, validating facts
  • Identify evidence of functional decisional making in relation to these areas of decision making, including evidence of observations, reports etc.
  • Identify who is involved, or may be referenced, in relation to the decision, considering if appropriate to consult
  • Identify if there are points of change or concern observed in decision making regarding the matter(s) being considered
  • Establish the relevant person’s communication needs, including if a translator, interpreter, or augmentative technology is required to support
  • Establish the relevant person’s health needs, including any accessibility requirements and that they are free from infection

Further information

For help and support with mental capacity assessments for complex cases, please get in touch. We have already published a range of resources and guides on this area, and highly recommend our blog ‘What information is needed for a mental capacity assessment?’ as a starting point to help you better understand the many nuances involved with assessments.

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