There are many occasions where an individual may be unwilling or unable to engage with a mental capacity assessment. It is not a rare event by any means, and 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.
It is therefore important to know what to do when such an instance occurs, seeking to distinguish the cause – knowing how to respond appropriately, while continuing to maintain an individual’s rights and work in line with legislation and appropriate best practice guidance.
Consent to assess
In a previous blog we discussed the process of explaining what a mental capacity assessment is, what it involves and why it is important. This helps set the scene for the assessment, supporting the individual to know what is going on and why, ensuring they are actively involved in the process and are aware of their rights. It also gives the assessor some initial insight into the individual’s ability to process and understand information, while also helping to establish a professional therapeutic working relationship.
Most importantly, this process gives the individual the opportunity to consent to be assessed. This is both a necessary and important part of any healthcare treatment or intervention, and is part of the ethical codes of practice for healthcare professionals.
The Mental Capacity Act does not overwrite the need for consent by any means. Rather, it safeguards and protects those who are unable to give consent, while further supporting future decisions of those who have mental capacity to anticipate specific decisions.
Indeed, Mr Justice Hayden advocates this as a core requirement, stating: ‘It seems to me to be fundamental to the assessment process that P is informed of the purpose of the assessment’ LB Wandsworth v M & Ors (2017, EWHC 2435, paragraph 47).
Forms of consent
The best form of consent is informed consent, which means the individual is aware of what the decision is, they are able to understand the relevant information and retain it in order to weigh up the risks and benefits in order to make a decision. This is determined based on the balance of probabilities in terms of where this threshold lies.
A lesser form of consent is known as ‘implied’ consent. This is the action of choosing to take part or engage in a process, implying some form of agreement. An example might be an individual choosing between two options such as tea or coffee. By gesturing towards the choice for ‘coffee’, there is implied consent to the process of making a decision between the two.
But what if the individual does not engage, and does not give either form of consent? Are we still able to proceed with an assessment?
The role of context
Context is important, as it helps to aid understanding and communication on both sides. This means taking into account a range of wider factors including:
- What is their first language and how do they best communicate? Is an interpreter required?
- Can they hear adequately? Do they wear hearing aids or need to sit in a different environment in order to take part?
- Are they unwell with an infection or other health condition?
- Do they prefer a particular time of day?
- What is the physical environment like? Are there any distractions or influences to engagement? What is the individual’s preferred routine?
- Has something happened to cause decreased motivation or mood?
- Where would the individual prefer to speak? Do they prefer more structure? Had they been aware you were attending?
- Do they prefer to ‘walk with purpose’ to aid processing and engagement? Do they require a dynamic assessment on the move?
- Does the individual take time to trust a new person? Would they prefer a chosen person (who is not a part of the decision being assessed, or a known influence) to attend to provide emotional support?
- What else may be impacting their engagement?
As we have often mentioned across our blogs, supporting capacity can take many forms and is a core principle of the Mental Capacity Act that must be upheld. Therefore, every effort must be made to consider all possible factors that may be affecting an individual’s engagement with the process, and steps should be taken to enable participation.
Each adaptation should be documented in the assessment document – whether the adaptation is successful or not. This helps to build a picture of the individual’s needs and provides evidence of the process of supporting capacity.
There is no formal limit on how many times an assessment should be attempted. However, I would suggest an assessor make as many attempts as reasonably possible in order to support participation.
Once all avenues have been established, explored and exhausted, it is then down to the assessor and any associated professionals to determine if this lack of participation is down to an individual choice to decline, or a lack of capacity to participate. If the former, the individual should be informed of their rights and it should be clarified if any other legislation would be appropriate to refer to and correct processes to follow depending upon the decision.
Meanwhile, if the individual is determined to lack capacity to participate in the assessment then a Best Interest decision should be pursued and the assessment process thoroughly documented. A mental capacity assessment can be done on the available information from these interactions, with emphasis on support, presentation and response of the individual. Depending upon the situation, it may be that a Court of Protection decision is required.