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DoLS: Mental capacity assessment

What makes a good mental capacity assessor

The assessor (56) must be eligible to be either a best interests assessor or a medical assessor. Consideration should be given to using an assessor who already knows the person if this is possible, since it is likely to reduce the stress of being assessed, and enable the relevant person to be at their most relaxed. The assessor should also have professional experience and knowledge of the possibly incapacitating disorder the person lives with – for example, learning disability, dementia, multiple sclerosis or acquired brain injury. 

Supervisory body’s best interests assessors: DoLS example from practice

A supervisory body audited the skills of its best interests assessors and mental health assessors, and found a lack of expertise relating to acquired brain injury and neurological conditions. The governance group identified professionals with the appropriate skills and professional knowledge, and encouraged them to train in order to join the pool of assessors.

What makes a good mental capacity assessment

It is crucial for the assessor to be clear that they are assessing the person’s capacity about a specific question whether or not he or she should be accommodated in this particular hospital or care home, for the purpose of being given some specific care or treatment. 

Assessors must be clear that this is a separate assessment from that relating to the capacity to engage in contact with family and friends: a person may have capacity to decide who they want to socialise with, but lack capacity to consent to the question of accommodation in a care home or a hospital.

Section 4.29 of the DoLS code of practice (57) emphasises that ‘the assessment refers specifically to the relevant person’s capacity to make this decision at the time it needs to be made. The starting assumption should always be that a person has the capacity to make the decision’. Chapter 3 of the main MCA code of practice discusses in detail ways to empower people to make their own decisions. Any assessment of capacity must also demonstrate that every effort has been made to enable a person to make their own decision.

The assessment must give evidence, at every stage, of how the person was assessed for the two-part test, and which elements of the ‘four functional tasks’ they could not manage, even with every assistance and support given as required under the second principle of the MCA. (As described in the MCA code of practice, Chapter 4, these four tasks are: to understand relevant information appropriately presented, retain it for long enough to use and weigh it to reach a decision, then to communicate by any means possible that decision)The fourth step, inability to communicate, specifically refers to someone who cannot communicate in any way whatever, such as a person in a coma or with locked-in syndrome (see Section 4.15 of the MCA code of practice (58)).

When considering a person who is self-neglecting, it can sometimes appear that a series of small decisions, each taken with capacity, could incrementally lead to a situation that was not chosen but which the individual did not have the capacity to understand and change. The distinction in the literature between decisional and executive capacity is seldom found in practice and its importance for determining responses to self-neglect needs to be considered further and be more fully understood in practice. 

The emotional components of capacity are hard to identify, but may prevent the person from using and weighing information through, for example, fear of ‘the state’ or shame at not coping. (59)     

Checklist for mental capacity assessors

  • The assessor is satisfied that the first part of the two-stage test, the diagnostic stage, is met.
  • The assessor is clear about the concrete details of the choice facing the person, for example, between living in a care home and living at home with a realistic package of care (rather than just ‘going home’ with no clear outline of available support).
  • The assessor is clear that the person has been given enough information about their options, expressed appropriately, and at their best time of day, to empower them to make this decision if at all possible (while not expecting them to necessarily retain peripheral and minor details).
  • The person has been given all practical support as stated in the second principle of the Act.
  • The assessor has taken into account any relevant factors relating to the person’s diagnosis – for example, that a person with a brain injury may have a good theoretical understanding of the choice before him or her, while having great difficulty using and weighing information.
  • Bearing in mind a person’s right to make unwise decisions with capacity, the assessor has taken care to avoid inadvertently attaching excessive weight to their own views of how this person’s physical safety may be best protected, and insufficient weight to the person’s own views of how their emotional needs may best be met.
  • The assessor is satisfied about which of the first three functions (understand, retain, use and weigh) the person is unable, on the balance of probabilities, to carry out, or whether the person is unable in any way to communicate a decision.
  • The recording is clear and is there evidence to bear out the assessor’s assertions.

For an example of an audit tool to scrutinise DoLS assessments of mental capacity, see Appendix 3.

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