When conducting a Mental Capacity Assessment it is vital to understand the salient information relevant to this case. Put simply, ‘salient information’ is the relevant information that is required in order for the relevant person to be able to demonstrate capacity for the specific decision being addressed.
To help illustrate this point, we have two case studies that consider two separate decisions: whether to install bed rails, and whether to smoke.
Example 1: Bed rails
For the decision of whether to use bed rails to help prevent falls, the core concepts for the decision may include (but are not limited to):
- What is a bed rail?
- How many bed rails would be required?
- Is there any cover for the bed rail?
- What is the impact of a bed rail on access to/from the bed?
- When would the bed rail be in use?
- How long would a bed rail be in use for?
- How would a bed rail be used? How would one access help with the bed rail?
- Why is a bed rail being suggested? (i.e. frequent falls from bed)
- What are the alternatives to using a bed rail?
- What are the related benefits and risks associated with using / not using a bed rail?
However, this decision would not include information relating to other personal care provisions, such as hoisting or sensor alarms. This is because these are separate decisions that would need separate assessments if there were sufficient ‘reasonable belief’ that the individual may lack capacity to consent to the care plan for that specific provision.
Example 2: Smoking
Core concepts for this decision may include (but are not limited to):
- What is smoking?
- What types of smoking are there? (e.g. roll-up, cigarette, pipe, cigar)
- What are the mechanics of smoking? What is involved?
- What is the smoking policy in place where the individual lives? (if appropriate)
- Are there any concerns noted around smoking for the individual? (e.g. fine motor control, method of smoking causing burns to skin, the possibility of falling asleep while smoking etc.)
- How might the individual manage risks associated with smoking?
- Are there any relevant health conditions that may impact or be affected by smoking?
- What are the benefits and risks of smoking and the alternatives available?
In this example, the salient information would not include budgeting for smoking, or indeed the individual’s functional mobility to reach the designated smoking area (if they live in a care home), as these are separate to the specific decision of whether to smoke in the context of the individual’s care plan and associated risk assessments.
Creating appropriate, graded questions
Once the salient information has been established, these can be turned into a set of questions used to guide the assessment, alongside any practicable resources to support comprehension, communication and engagement with the assessment process. All the while remembering that the focus should be on the specific decision. This is a common error in Mental Capacity Assessments, and is a matter that has been addressed many times in the Court of Protection, in hearings such as A Local Authority v JB (2021) EKSC 52.
Assessing for capacity
There will naturally be a deluge of information to ‘sift’ through as the assessment is completed, consultations completed to support a ‘3D assessment’ and in the analysing of information. It is the assessor’s responsibility to discern what is relevant to the decision being assessed, returning to the specific decision and the relevant context for that individual. From this, considering this information gathered in the ‘balance of probabilities’ to determine an outcome of assessment.
There may be deviations that emerge and give rise to other questions during the assessment, but it is important to separate these, focusing on the specific decision that is being considered. Any related questions or concerns should be followed up professionally as separate actions or even as separate assessments if appropriate.