The Office of the Public Guardian (OPG) has published updated guidance for lay deputies and what they must do to meet the standards of the role. These can be found on the Government website, where there are also additional standards for public authority figures, and professionals who may also be assigned the role of deputy.
The causative nexus is an essential part of any mental capacity assessment as it provides a clear rationale for whether the person being assessed has capacity to make a specific decision.
Lasting Power of Attorney (LPA) enables a person to make the advanced decision to assign a person (or persons) to help make decisions, or to make decisions on their behalf if unable to in the future. This role is set out in the Mental Capacity Act and provides greater legal rights than the position of Next of Kin.
Mental Capacity can be impacted by an impairment or disturbance of the brain that directly affects cognitive functioning. In today’s blog we look at a selection of short-term and long-term conditions that can be a direct factor.
In everyday healthcare practice we are directed by legislation and best practice guidance to gain informed consent for medical interventions, care plans and, broadly speaking, any professional interaction. This includes consent to be photographed, which in years gone by would have included use on medication charts (MARS sheets), care plans and care provider notice boards. In more recent years, it also includes the use of photos shared on social media, email and messaging services such as WhatsApp.
If someone is unable to demonstrate mental capacity to assign a Lasting Power of Attorney (LPA), and is unable to manage either their health and welfare or property and financial affairs, then an application can be made to the Court of Protection (COP) to assign a deputy to said role if appropriate.
There are occasions where an individual may be unwilling or unable to engage with a mental capacity assessment, from which there are many possible reasons why this may occur. For example, there may be an issue with the specific context of the situation, the individual’s health conditions, the professional’s approach to the test, or even the adaptations that have been made to support.
When we refer to the ‘threshold of capacity’, we refer to the point at which a professional assessor can claim with confidence that an individual has or has not demonstrated capacity to make a specific decision at a specific point in time. This is determined by what is known as the balance of probabilities.
Mental Capacity Assessments are typically provided by experienced healthcare professionals working independently, or as part of a larger organisation. Unless there is a statutory requirement for the assessment, relating to a specific care or treatment decision, then it is unlikely that an assessment will fall under NHS provision and be free of charge.
In previous blogs we have considered what questions to ask as part of Mental Capacity Assessments. We have also worked through a case study in a two-part blog. In today’s blog, we aim to build upon this knowledge, taking a brief look at the types of questions that can be asked, taking special consideration of just how we frame a question and grade it to the client’s needs.