When conducting a Mental Capacity Assessment, the assessor is required to take care and consideration of the person being assessed. This includes making sure that the assessment is accessible, and that reasonable adjustments are made to aid the individual’s understanding and retention.
While it may sometimes help to have a familiar person present to help them feel at ease, or to support with communication, there is a risk that the person being assessed turns to them for answers, rather than exploring their own understanding.
Risks of undue influence
Whether intentional or not, the presence of other persons at the assessment can potentially have an undue influence upon the person being assessed. It may be that they wish to please their loved one, or that they echo responses heard from them in the past. In some cases it may even be the case that there is some underlying control present that is affecting their freedom of expression.
In our own experience, it can often also be the case that the family member or friend may try to answer for them, or ‘fill the gaps’ in their answers. While they may be seeking to help, this behaviour can affect the outcome of the assessment, as it does not allow the assessor to establish the true extent of the individual’s capacity to understand, weigh up and communicate a decision on their own.
Furthermore, from a legal standpoint, if the familiar person, friend or family member is related to the decision and possible Best Interest Decision, it can result in assessment outcome being more open to legal challenges at some point in the future as opposing parties can claim ‘undue influence’ and request a review.
Avoid additional persons if possible
For all of these reasons, we would always recommend to avoid having additional people present at the assessment unless there is a clear rational, being necessary.
If someone is required, then the familiar person, friend, or family member present should not be directly related to the decision being made, or the possible Best Interest Decision that would need to be made on their behalf.
It is also important that the additional person(s) present should be fully briefed on how the assessment will work, and that they should keep their interventions to a minimum. Otherwise they risk undermining the process, and the ability of the person being assessed to have their voice heard.