Mental capacity assessments
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Introduction
The Mental Capacity Act 2005 (the “Act”) aims to protect and empower vulnerable people who may lack the mental capacity to make some decisions. The Act applies to everyone working in health care, social care and other sectors who are involved in the support and treatment of people living in England and Wales, who are over 16 and who can’t make all or some decisions by themselves.
There are five key principles that must be considered at all times:
- A Client must be assumed to have capacity unless it is established that they lack capacity.
- A Client is not to be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success.
- A Client is not to be treated as unable to make a decision merely because they make an unwise decision.
- An act done, or decision made, under this Act for or on behalf of a Client who lacks capacity must be done, or made, in their best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the Client’s rights and freedom of action.
1. Obtaining mental capacity assessments
1.1 What are Clients entitled to?
A person who is carrying out any care or treatment for the Client must make an assessment of capacity. The assessor has to have a reasonable belief that the Client does not have the capacity to make the decision by themselves.
There is a two-stage test of capacity:
- Is there an impairment of, or disturbance to, the functioning of the mind or brain?
- Examples of this include: dementia, significant learning disabilities, concussion after a head injury, conditions associated with some forms of mental illness, delirium, physical/medical conditions that cause confusion, drowsiness or loss of consciousness, symptoms of alcohol or drug use.
If the answer to question 1 is no (i.e. the Client does not have an impairment or disturbance of the mind or brain), the Client does not lack capacity under the Act. If the answer is yes:
- Examples of this include: dementia, significant learning disabilities, concussion after a head injury, conditions associated with some forms of mental illness, delirium, physical/medical conditions that cause confusion, drowsiness or loss of consciousness, symptoms of alcohol or drug use.
- Is the impairment or disturbance sufficient that the Client is unable to make that particular decision?
- The answer is yes if the Client is unable to understand the information given to them, retain that information long enough to make a decision and weigh up the information available to make the decision.
The Client must then be able to communicate the decision. Communicating can be through talking, using sign language or even simple muscle movements such as blinking or squeezing a hand. (For example, a person in a coma could not communicate a decision).
- The answer is yes if the Client is unable to understand the information given to them, retain that information long enough to make a decision and weigh up the information available to make the decision.
As well as the two-stage test above, any decisions made regarding capacity must follow the best interests checklist and consider:
- The Client’s past and present wishes and feelings;
- The beliefs and values that would be likely to influence the Client’s decision if they had capacity;
- The other factors that the Client would likely consider if they were able to do so (i.e. the type of mental health problem or physical illness, how long it will likely last, their age, whether they would normally take this decision themselves, whether they are likely to recover capacity in the near future and who has cared or is caring for them).
- Whether the Client will likely have capacity to make the decision in the future and whether the decision can be put off in the short-term.
The assessor should be someone who is directly concerned with the individual at the time the decision is made. It can be different people at different times. The person assessing does not need to have any qualifications or training but the more serious the decision is, the more formal the process should be. A professional will make the assessment at certain times when there is a complex or major decision e.g. a doctor will assess if the Client consents to medical treatment but a family member can assess if the Client consents to being fed.
If a professional is involved in assessing capacity, they are there to advise and the decision should be made by the person acting on behalf of the Client (e.g. a doctor advising a social worker).
1.2 How can a Client make their case effectively?
The assessment must just examine the Client’s capacity at that time. Capacity can fluctuate so it might be possible to put off examining the Client’s capacity and making a decision until they are less impaired. For example, if the Client is more alert and has greater understanding in the morning, the assessment should take place during the morning hours; or if the impairment is temporary (e.g. due to alcohol), the assessment should wait until the temporary impairment has passed.
Every effort must be made to provide the information necessary to make the decision in a way that the Client can understand. This can mean using an interpreter, visual aids or simple language. The Client does not need to be able to retain information for a long time in order to make the decision in question. The Client can ask for the reasons behind the decision to be recorded.
1.3 What to do if the Client is ignored or refused their rights?
Please refer to section 3 below.
2. Poor quality assessments (brief phone calls with Clients, etc.)
The five key principles and best interests checklist (both detailed above) must be followed.
The Client must be assumed to have capacity and is entitled to all practical steps to help them make a decision. A Client should not be treated as not having capacity to make a decision just because they make an unwise decision. Any decisions made on behalf of the Client under the Act must be done in their best interests. It must be considered if there is an alternative way to achieve the purpose for which the decision is needed.
Please refer to 1.2 above.
Please refer to 3 below.
3. How to appeal decisions
What: The Client can challenge the outcome of a Mental Capacity Assessment; a Best Interests decision; or how a Best Interests decision has been/is being implemented.
Who: The Client can challenge the decision as can the following people: representatives of the Client if they lack capacity e.g. an IMCA, family members or friends of the Client who are concerned about their welfare, carers (paid or unpaid), health or social care professionals, the Client’s legal representative, or the Court of Protection.
How: If the Client disagrees with a decision over their mental capacity and wants to challenge the decision, the Client can:
- Raise the issue with the person who carried out the assessment and ask for any evidence to support their belief that the person lacks capacity. The person who carried out the assessment must show they applied the 5 principles of the Act and considered the best interests checklist.
- Ask for a second opinion from an expert in assessing capacity e.g. a healthcare professional, GP.
- If the disagreement cannot be resolved this way, the Client can apply to the Court of Protection who can rule whether or not the Client has the capacity to make the decision in question.
The challenges can be informal or formal. An informal challenge or complaint would include the Client communicating their disagreement either in writing or verbally and confirming their wish to make a formal complaint if the disagreement cannot be resolved.
Raising a formal challenge or complaint would depend on who had made the mental capacity assessment. It involves raising a formal complaint such as to the Local Government Ombudsmen, to the Health Service Ombudsmen or through the formal complaints procedures of the Local Authority or Clinical Commissioning Groups.
Ask to see any written records of the mental capacity assessment. The person carrying out the assessment might not have been required to record the reasons for their decision but it is best practice to do so. Doctors and healthcare professionals will be required to keep a formal record, perhaps in the Client’s clinical notes.
4. Deprivation of Liberty
Deprivation of liberty is when an individual has their freedom to make their own decisions taken away i.e. the individual will not be free to leave wherever they are being detained (for example, a hospital or care home) and where they will be under continuous supervision and control.
A Client’s liberty can only be taken away under the Mental Capacity Act if:
- They are 16 or over;
- They lack capacity to agree to the restrictions;
- The care home or hospital where they are staying has successfully applied for an authorisation from the local authority;
- The deprivation of liberty safeguards have been followed; or
- Where the Court of Protection grants permission.
Case study
Jon has memory problems that have got worse over time, and lives in a care home. Because of his condition, he is less aware of danger than a person without the condition. He is unable to cross a busy road on his own and does not understand that it is dangerous to cross a nearby railway line.
Jon needs constant supervision and also has to be stopped from going out on his own. This usually involves keeping him in a locked room and physically stopping him if he tries to go out on his own. To keep him safe, this has to be done on a regular basis.
It would be unlawful for the staff to do this without using the deprivation of liberty safeguards, so they should apply to the local authority for permission, called a ‘standard authorisation’, as soon as they realise it is necessary.
Source: Deprivation of liberty | Mind, the mental health charity – help for mental health problems
A deprivation of liberty should only be used if it is the least restrictive way of keeping the Client safe.
The care home or hospital where the Client is staying will have to get permission from the relevant authority.
Before the deprivation of liberty can be authorised, the Client will need to have six assessments:
- An age assessment to make sure that the Client is aged 18 or over.
- A mental health assessment to confirm that the Client has been diagnosed with a ‘mental disorder’ within the meaning of the Mental Health Act.
- A mental capacity assessment to see whether the Client has capacity to decide where the accommodation should be. If the Client has capacity to decide, they should not be deprived of their liberty.
- A best interests assessment to see whether the Client is being, or is going to be, deprived of their liberty and whether it is in their best interests. This should take account of the Client’s values and any views they have expressed in the past, and the views of their friends, family, informal carers and any professionals involved in their care.
- An eligibility assessment to confirm that the Client is not detained under the Mental Health Act 1983 or subject to a requirement that would conflict with the Deprivation of Liberty Safeguards. This includes being required to live somewhere else under Mental Health Act guardianship.
- A ‘no refusals’ assessment to make sure that the deprivation of liberty does not conflict with any advance decision the Client has made, or the decision of an attorney under a lasting power of attorney or a deputy appointed by the Court of Protection.
The maximum time allowed for a deprivation of liberty is 12 months. This can be renewed as soon as the existing authorisation has run out. The authorisation must:
- be in writing;
- include the purpose of depriving the Client of liberty;
- state why the supervisory body considers that the Client meets the legal conditions for using a deprivation of liberty;
- contain any conditions attached to the authorisation, such as steps to maintain contact with the Client’s family or meets their cultural needs.
Source: Deprivation of liberty | Mind, the mental health charity – help for mental health problems
The decision can be challenged by either asking for a review of the authorisation or by appealing to the Court of Protection:
Reviewing the authorisation
The supervisory board must review the authorisation if requested to do so. The Client may have to go through the six assessments again if circumstances have changed.
The outcome may be that the authorisation is ended, the conditions attached to it are changed or the Client may still meet the conditions for a deprivation of liberty, possibly for a different reason.
The local authority can provide an independent mental health capacity advocate to assist with this.
Appealing to the Court of Protection
The Client or their representative have a right to appeal against a decision of the supervisory body. Legal aid is available for those appealing to have legal representation.
The Court may tell the hospital or care home that the authorisation is at an end, or tell the body that granted the permission to change or end it.
Source: Deprivation of liberty | Mind, the mental health charity – help for mental health problems
5. What sources of expertise/clout can you turn to?
Mind is a mental health charity. Their Legal line (0300 466 6463) provides legal information and general advice on mental health-related law including:
- Sectioning
- Mental capacity
- Community care
- Discrimination and equality
6. Glossary
IMCA – Independent Mental Capacity Assessor – IMCAs act as a safeguard for people who are deemed to lack capacity to make important decisions. They support and represent the person in the decision making process and ensure that the Act is being followed.