GN Law - Our People News and TV

Assessing Mental Capacity

Our People - Maria Nicholas
28 June, 2013

Summary

The CQC report on mental capacity highlights the following problems:

  • There is a lack of understanding of the requirements of the Mental Capacity Act (MCA), especially in the use of restraint.
  • There is insufficient consideration being given to an individual’s mental capacity or best interests when using restraint.
  • Lack of training amongst care staff is an issue.
  • The requirement to involve family and friends in safeguarding decisions was lacking.

CQC report on the MCA

The Care Quality Commission (CQC), rarely absent from the news in recent times, are facing many changes, including how, when and who carries out inspections.

Another change, which has been less widely publicised, but is just as important, is focussed on improving the level of understanding CQC inspectors have of the Mental Capacity Act 2005 (MCA). This is to ensure a consistent and effective approach to monitoring the use of the Deprivation of Liberty Safeguards. Care providers therefore need to be mindful of this particular focus and ensure that they too have the required understanding.

A CQC report from March 2013 found that there is still a widespread lack of understanding of the MCA.  In some care homes and hospitals, residents and patients are unnecessarily restricted or restrained, without due consideration being given to their capacity or best interests in accordance with the principles set out in the MCA.

The main points requiring improvement were identified as: 

  • A lack of understanding about basic MCA requirements, especially relating to the use of restraint. The use of restraint is not always recognised or recorded properly and so it is not easy to monitor.
  • The use of restraint has become routine, and it can be difficult to gauge if restraint was a proportionate measure and in that person’s best interests.
  • There is a lack of training; in some cases senior staff might have had training while other care staff have not.
  • Poor practice was identified in places where non-detained patients were kept alongside patients detained under the Mental Health Act 1983 in the sense that the non-detained patients were being restricted in a similar way to the detained patients.
  • There was little evidence of patients/residents’ friends and family being kept involved in the Safeguards process, even though consultation with relatives and/or close friends is a mandatory part of the process.

In the remainder of this article we will set out some of the basic principles of the MCA to help providers get to grips with this important piece of law.

The basic principles of the MCA

There are five main principles which underlie the MCA, and they must be borne in mind at all times when issues of capacity or best interests are at hand. These are:

  1. A person must be assumed to have capacity unless it is established that he lacks capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, under the MCA for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  5. 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 person’s rights and freedom of action.

Libertyand proportionality are key; steps should not be taken to restrict someone’s liberty unless you are satisfied: –

a) they do lack capacity to make that particular decision; and
b) the act is the least restrictive way of achieving what needs to be done

The determination of capacity

Often, determining a resident’s capacity will be straightforward because of the extent or severity of their mental health condition. In other cases it can be very borderline or fluctuating, or it may differ depending on the particular issue at hand.

An individual is said to lack capacity in relation to a particular matter if at that particular time he is unable to make a decision for himself in relation to the issue in question “because of an impairment of, or a disturbance in the functioning of, the mind or brain” (s.2 of the MCA). 

This test must be applied to every decision or particular issue an individual has to make, as an individual can be determined to have or lack capacity in relation to one decision but not another. For example, a resident may lack capacity to manage his finances and require the appointment of a Property and Affairs Deputy or appointee, but that person may still be able to make a decision about where he should live.

The test of capacity

In order to determine whether or not someone has capacity the following four questions have to be asked:

  1. Can the person understand the information relevant to the decision?
  2. Can they retain that information?
  3. Can they use or weigh that information as part of the process of making the decision?  
  4. Can they communicate their decision (whether by talking, using sign language or any other means)?

In order to have capacity the individual has to be able to do all of these things.

Assessing capacity

Capacity assessments can be carried out by nurses, carers, relatives, social workers and of course doctors and psychiatrists, depending on the complexity of their condition, the seriousness of the decision to be made and the urgency of the situation. Inevitably care home staff will have to assess capacity from time to time, for example in relation to the need for restraint or taking medication. As such it is important that all care home staff have training in assessing capacity to cover these eventualities.

If capacity is very unclear or there is a dispute, for example with family members, it is best to ask a psychiatrist to carry out an assessment if time allows for this.

There is no standard form for a capacity assessment, but having your own form will help to ensure all points are covered and that there is consistency across the organisation. It will also be a useful place to record the questions put to the individual, how they answered, and the reasons for reaching the conclusion.

It is important that a capacity assessment is carried out in a quiet, calm environment without anyone else being present. If possible the assessment should be done when the person has the most chance of engaging, for example at a time of day when they are most alert. It is a good idea where possible to evidence that the assessor has tried to speak to the individual at different times, to give them the best possible chance of making a decision for themselves.

If the conclusion is that the person lacks capacity, always remember that even so, their past and present wishes, beliefs and values still play an important role in determining their best interests so be sure to ask what they want and to consider any previously expressed wishes.

There is a vast array of information and cases on assessing capacity and determining best interests, far more than can be covered in this article. It is an evolving area of law and it is recommended that providers do attend regular training to stay abreast of developments.

For publication in the October 2013 edition of Quality & Compliance Magazine.

Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

Related Articles

Anna Johnson considers the upcoming changes to the Deprivation of Liberty Safeguards and what the changes may mean.
Our People - Anna Johnson
The participation of the protected party (P) in Court of Protection proceedings remains a priority, to ensure those at the centre of the debate are being listened to. Judicial visits allow P to communicate their wishes and feelings to the judge directly and provide an invaluable tool to ensure they are included in decisions made...
Our People - Anna Johnson
Anna Johnson considers the Supreme Court decision in Re JB regarding capacity to consent to sexual activity.
Our People - Anna Johnson
GN Law

Send a message

We will only use the information you enter in this form to contact you about your enquiry and will not share it with anyone else. Please read our Privacy Notice.