Assessing mental capacity is a complex task for social workers and other practitioners. A recent safeguarding adults review found that a lack of “legal literacy” around mental capacity law meant professionals missed opportunities to safeguard a man who refused medical treatment. The review recommended that steps be taken to improve training on mental health legislation.
In a detailed guide to assessing mental capacity and making best-interests decisions for Community Care Inform Adults, Michael Lyne goes through the five principles of the Mental Capacity Act, recording assessments of capacity and the best interests checklist. Lyne is programme leader for the best interests assessor programme at Bournemouth University. Inform Adults subscribers can read the full guide and other resources on our mental capacity knowledge and practice hub. Below is an excerpt from Lyne’s guide, focusing on the second principle of the Mental Capacity Act.
The five principles
Section 1 of the Mental Capacity Act sets out five basic and fundamental principles which all those working with vulnerable individuals over 16 should adhere to:
- A person must be assumed to have capacity unless it is established that he lacks capacity (subsection 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 (subsection 3).
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision (subsection 4).
- An act done, or a decision made, under the MCA for or on behalf of a person who lacks capacity must be done, or made, in his best interests (subsection 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 (subsection 6).
‘Practicable steps’ can really be divided into two types. Firstly, there are the obvious steps which one might take.
This might include using a translator for people who prefer to use their native language. This is something which is particularly common among older people with dementias. It might also include the need to use specific types of communication equipment or types of languages such as Makaton.
There might be a need to engage the services of a specialist, such as a speech and language therapist. Conversely, a person may need to write their decision down if speech is difficult or non-existent. Simply blinking an eye or squeezing a carer’s hand might well indicate an ability to communicate.
The second consideration in terms of ‘practicable steps’ is slightly less mechanistic and concerns such issues as environment and support. Many of the decisions that we ask people to make can be emotionally difficult and life changing. The ‘simple’ decision of entering residential care, for instance, is anything but simple. Allied to a loss of independence or dignity and a fear of the unknown may be memories of a life in their previous home, possibly including marriage, birth and bringing up of children, and feelings of worthlessness, guilt, anger and depression.
Should we really be asking people to make these types of decisions in the middle of a busy hospital ward, where perhaps the only ‘privacy’ is behind the bedside curtains, or in a residential home lounge while the client is there on respite?
Sometimes the support of a friend or family member can help ease this situation. We need to ensure that anyone who provides support in this way is not actually trying to make the decision or pressurise the client into making a particular choice, but are there for emotional support.