Mental Capacity Assessmentswhat do we need to know?

Circle Case Management’s Mental Capacity Assessment service is led by critically acclaimed and industry leader, Dr. Abi Cheeseman who has been instructed on an extremely wide variety of assessments and states: “No two assessments are the same and each capacity question has to be addressed individually. P could have the capacity to make their own medical, housing or relationship decisions, but may lack capacity to make financial decisions, for example.”

Q: Can one mental capacity assessment be used to ask about two different aspects of P’s life?

A mental capacity assessment is a process used to determine an individual's ability to make specific decisions. There is no such thing as a ‘blanket’ or generic assessment for mental capacity.

While there may be significant overlap in the types of knowledge and understanding needed for different decisions, each decision or matter must be examined according to the unique circumstances of that individual. There are several reasons why the assessment process may differ across different types of decisions:

1. Nature of the decision/activity: Managing finances and deciding whether to engage in sexual activity involve distinct types of decisionmaking and responsibilities. Assessing mental capacity for finances typically focuses on evaluating an individual's understanding of financial concepts, ability to manage money, paying bills, understand how to store and access money, make informed choices about investments, and protect themselves from financial exploitation. On the other hand, assessing mental capacity for engaging in sexual relations evaluates an individual's understanding of the nature and consequences of sexual activity, theirs and their prospective sexual partner’s right to say no, ability to consent or withhold consent, and their capacity to understand and protect themselves from potential harm or exploitation.

2. Legal and ethical considerations: The legal and ethical frameworks surrounding financial decisions and sexual activity differ significantly. Laws and regulations governing financial transactions and contracts are complex and designed to protect individual’s financial interests.

Assessments related to financial capacity often consider an individual's ability to comprehend legal obligations, contractual terms, and financial risks.

In contrast, assessments related to sexual capacity involve considerations of consent, the law as it relates to sexual offences, personal autonomy, and potential risks to physical and emotional wellbeing.

3. Cultural and societal factors: Societal attitudes and cultural norms play a role in shaping the assessment of mental capacity. Different societies or cultures may have varying perspectives on financial decision-making and sexual activity. For instance, in some cultures, age, gender, or marital status may influence the evaluation of mental capacity in relation to sexual activity. These factors may not be as prominent in assessments related to financial capacity.

Q: How do you know how many assessments are needed?

Every enquiry to our MCA department comes through to Kirsten, MCA Technical Team Manager who initiates our triage process. Quite often we will need to request further information or gain clarity from the instructing Deputy, Solicitor or individual so that we can be certain as to what specific decisions are in question and how the opinion should be documented. Sometimes we are asked to assess for more than one decision, for example capacity to manage finances and testamentary capacity. It’s important that we uphold the principles of the Mental Capacity Act by ensuring that each decision is assessed separately, and that the client is provided with as much support as necessary to make their own decisions. This could include special adaptations or be as simple as providing the client with more time. We try to make the entire process as easy as possible for the client and the instructing party by being open and honest that more than one appointment may be required to ensure a robust and water-tight assessment. It is also important that assessments of capacity are not viewed as a ‘one off’. A person may fail to acquire, lose or regain capacity for a given matter as they go through their life. Mental capacity is something that needs to be re-visited and reviewed. There can be several reasons why someone might need more than one visit or appointment . Here are a few possible scenarios:

1. The nature of the client’s difficulties and making adjustments to provide maximal support to the client: Principle

2 of the MCA 2005 states that the person must be given all practical help and support to make their own decisions. In some cases, this could mean that information needs to be provided in different forms (pictures, signs, social stories) or that the person needs to have a period of education about a topic before their capacity can be fairly assessed. It could be that the person experiences extreme fatigue or a short attention span and can only engage in short sessions of 20-30 minutes. These are just some examples of why assessments cannot always be achieved in one appointment.

2. Fluctuating Capacity: In some cases, the client may have a difficulty or condition that fluctuates over time, either as a core part of the condition or triggered by another factor, for example medication, environmental factors. Some clients may be susceptible to infections or other secondary health problems that serve to exacerbate pre-existing problems. Under these circumstances it is important to understand how the condition affects the person and the variation seen in presentation. This could well mean meeting the client over 2 or more sessions.

3. Progressive conditions: Some neurological conditions, such as Alzheimer's disease or vascular dementia cause a decline in cognitive abilities over time. In such cases, periodic assessments may be necessary to track changes in mental capacity and provide appropriate care and support.

4. Legal and financial matters: Mental capacity assessments are often conducted in legal and financial contexts to determine an individual's ability to make decisions related to their personal affairs, property, or finances. If the person's capacity is in question, multiple assessments may be carried out to gather comprehensive and updated information over time.

5. Rehabilitation and recovery: After a brain injury or stroke, individuals may undergo rehabilitation programs to regain cognitive abilities and functional skills. Multiple assessments can be conducted at different stages of the rehabilitation process to monitor progress, support the person to make their own decisions and to tailor treatment plans accordingly.

It's important to note that the need for multiple mental capacity assessments is determined on a case-by-case basis by MCA professionals.

Q: Who carries out mental capacity assessments?

A mental capacity assessor will usually be a Doctor, a health professional (clinical psychologist, occupational therapist, speech and language therapist, nurse) or a social care professional (social worker). The professionals conducting mental capacity assessments may have different areas of expertise and training. For example, they may have a specialist clinical background in mental health services, learning disability or acquired brain injury. It is important that there is a good fit between the client and their particular clinical needs, and the person who is assessing capacity. This ensures the appropriate support is given and the assessor can understand how the person’s difficulties might affect their decision-making skills. Mental capacity assessments aim to evaluate an individual's ability to make informed decisions and engage in activities that align with their best interests and protect them from harm, regardless of the domain being assessed. Our MCA department continues to grow with a variety of assessments available throughout England and Wales. We have a range of professionals and experience within our assessors as no two assessments or clients are the same!

From setting up a Lasting Power of Attorney, to making a Will, to managing property and affairs, to marriage, sexual relations or to instruct solicitors in a claim for personal injury, we will work with you to establish exactly what is needed for your client. Please email MCA@circlecm.com to discuss your requirements.