Anyone can conduct a Mental Capacity Assessment. However, context is important, and a professional may be required for complex decisions. This will help ensure assessments are carried out in the correct manner, and that they are valid (i.e. reliable and trustworthy) in order to protect both the assessor, and the person being assessed.
The importance of context
In the case of an everyday care decision then the general rule is that the responsible care provider would complete a Mental Capacity Assessment should an individual’s capacity to make a specific decision at a specific time be in doubt. This may be a family member, partner, carer or member of the nursing team.
Treating professionals
If the decision is more complex, such as relating to a medical treatment, intervention, or procedure, it is down to the treating professional to assess. If the individual is found to lack capacity for a specific decision, and if there is no assigned LPA of deputy, then the decision-maker will be the treating professional, who has a duty to consult relevant parties to help inform decision making in the individual’s Best Interest.
Important note: in the case of an emergency where there is an immediate risk to life then is may fall to the responding doctor on consultant to act on the information available.
Social workers
If the decision relates to safeguarding, placement, care plans or similar, then the assessment will most likely fall under the remit of the individual’s assigned social worker. If they lack capacity for one of these decisions, then the decision maker will need to be identified, in the first case, this will be the LPA or deputy (if assigned). If this has not been done then it will fall to the social worker to act in Best Interest.
Again, the social worker acting in Best Interest has a duty to consult relevant parties, including Next of Kin. If this decision is taken to the Court of Protection, then an external assessment by a Mental Capacity Assessor may be requested.
Independent Mental Capacity Assessors
Some other complex decisions, such as those relating to property and/or financial affairs may also require a social worker conduct the relevant mental capacity assessment to help protect the individual’s rights.
However, if the decision relates to investments, selling a house, taking out a mortgage, making a financial gift, or similar, it is more likely that an independent external Mental Capacity Assessor be requested in order to safeguard the individual and ensure an experienced professional is leading the assessment. This also helps reduce the risk of legal challenges further down the line.
Should GPs carry out Mental Capacity Assessments?
General Practitioners (GPs) have a clear remit and role to assess capacity in relation to specific medication, treatment or referral – providing they have a reasonable belief that the individual lacks capacity for a specific decision at a specific time. This same process of assessment will also help ensure that an individual can provide informed consent for said medication, intervention, treatment or referral to uphold best practice and safeguard a complex decision.
Beyond treatment-specific roles, a GP is under no responsibility to complete Mental Capacity Assessments for their patients on any other matter, especially those relating to finances, Lasting Power of Attorney or otherwise. This is because they are not experts in this area, and often do not have the time or resources to do such, even if they could.
External pressures
In 2014, TSF Assessments published a blog on this matter, observing that in medical terms, a GP may identify and make referrals for specialist conditions but are not expected to be an expert in said condition. The same applies to Mental Capacity Assessments. While GPs must have knowledge of the principles and requirements of the Mental Capacity Act (2005), they are not required to hold a specialist skillset with regards to the Act.
This is an observation that has been shared by the care team at Ide Lane Surgery (NHS), who note that their Mental Capacity Assessments sit only within the remit of medical investigations, treatment and care. This is because of the ‘extremely high’ risk and responsibility associated to many Mental Capacity Assessments that may have repercussions on professional relationships with patients and their families. There are also risks associated with what should happen if there were to be a difference of opinion, or a legal challenge against an assessment at some point in the future.
Making the right choice
While technically speaking, anyone can carry out a Mental Capacity Assessment, that is not to say that anyone should carry out an assessment. For complex decisions especially, it is essential that an assessment be carried out by a trained and qualified professional who can record and document the assessment to a high standard. Not only does this help protect the individual’s rights, but it also helps protect the decision being made, for it reduces the risk of legal challenges, and makes sure that the individual’s voice is fully heard.
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