A guest blog by @DickyBiscuit
In this blog post, I will consider a particular phrase I’ve come across, which is used sometimes by a minority of professionals in assessment records. When used however, it has huge implications for the person being assessed as it assumes the status of evidence which demonstrates or proves that a person lacks the requisite capacity to make a certain decision, and therefore may be subjected to whatever the professional and others think is in the person’s best interests. I am considering the use of the phrase, “She will tell you what you want to hear” or “He will tell you what he thinks you want to hear.”
This is worthy of analysis; the person is telling the assessor what the assessor wants to hear, rather than what they actually believe, and that, therefore, is evidence of incapacity? What degree of proof must be provided to support such a claim? Certainly, I have read that phrase many times in capacity assessment forms but have never seen it supported by any evidence, the statement just sits there on the report, a value judgement against the person. It is a peculiar thing to read, because the person is at once vulnerable and needing to be cared for, and at the same time devious and trying to pull the wool over the assessor’s eyes.
So, is there a legal test referred to in case law and professional agreement captured in guidance which shows that if indeed the person is telling professionals what they want to hear, that this is appropriate to use as evidence of incapacity?
Well the short answer is – no.
Maybe instead it is mentioned in the legislation itself? Section 1(4) of the Mental Capacity Act says;
A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
Further, at section 2(1);
…a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
And at section 2(3);
A lack of capacity cannot be established merely by reference to —
(a) a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
And finally at section 3(1);
…a person is unable to make a decision for himself if he is unable —
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
I don’t see anything in there about a person telling others what they want to hear being legal grounds to asses they lack capacity.
One might also consider that a person telling professionals what the professional wants to hear that would require the person to have the skills of Derren Brown? And logically, if a person can work out what the assessor wants to hear, and can then tell the assessor what they want to hear in order to secure a particular outcome, then surely that would evidence a very high degree of cognitive functioning, thus making a claim that the person lacks capacity look increasingly silly?
Forgive my cynicism. We must consider; do people tell professionals what they want to hear? I would suggest the evidence is strongly that they do, because we all do it from time to time.
Here’s an example. Nearly 30 years ago, I went to see my then GP for a routine appointment. He asked if I smoked and I admitted that yes, I would smoke about fifteen Marlboro Lights a day. I loved ciggies. I can still hear the incredulity rising in his voice as he leaned across the desk, almost pleading with me, “Mr Biscuit, do you realise the lunacy of what you are doing to yourself?”
I was unhappy as I left the surgery. I did not want to be called a ‘lunatic’ so six months later when I went back, I lied and told him I had quit. He was very pleased with me. I don’t think he gave me a Chupa Chups lolly for being such a good boy, but I enjoyed the visit more than I had the previous one. I told the doctor what he wanted to hear, he didn’t criticise me as a consequence, and so I lit a celebratory fag as soon as I had left the surgery.
You take my point. I was telling the GP what he wanted to hear because I did not want to admit to having the breaking strain of a KitKat when it came to quitting smoking, or to have him lose his patience with me. I knew smoking was bad for me, of course I did, but still I smoked.
So how many of us tell GPs the truth when they ask us how much we drink, how much exercise we do? Or when the dentist asks, “Do you brush twice a day and floss and use mouthwash?” Yes of course! Every day!
We tell people what they want to hear all the time. It’s called lying.
The people having their mental capacity assessed will tell the assessor what he or she wants to hear but probably for different reasons, and crucially it is not evidence of incapacity.
I believe it is about power. Since starting the social work degree course at university in 1998, I repeatedly heard inspiring things about social workers giving power back to ‘service users’ – and then there would inevitably be a comment about how the power was never ours to give back and we would all agree.
But in practice this plainly is not always true. The person telling the social worker or psychiatrist what they want to hear, may be doing so, as I did with the GP, because they don’t want to appear daft or lacking in will power. But more likely, the person is afraid that if they admit to doing something risky (like not living in a care home or going to the pub on their own) then the assessor will stop them from doing it.
And why should the person not lie to their social worker? Who are health and social care workers to question people as if they are children and we their parents?
So this, more than any other reason, is I believe why people lie to professionals. It is not because of their mental impairment, it is because of the power imbalance between the assessor and the assessed, and the likely outcome of that imbalance (e.g. the person is that evening prevented from going to the pub by the professional who knocks off at five and goes to the pub).
There is the phenomenon of those who, as 39 Essex Chambers describe in their excellent guidance in assessing capacity, “can talk the talk, but not walk the walk, especially if they have had numerous prior capacity assessments.”
39 Essex Chambers refer to people with brain injuries who might say one thing but do another. It may be the case that a person will tell the assessor that yes, going out alone at night to the pub (for example) might make them vulnerable to attack by bad people and that they won’t do it, only to later go to the pub. The assessor then leaps on this as evidence of incapacity.
As the 39 Essex Chambers guidance suggests, we should put that repeated mismatch to the person. That detail – that the person says they won’t but the assessor can prove they have done more than once and will do again – is relevant information. That relevant information should be put to the person, and as the law says, it must be provided in a way that will enable him or her to understand it.
But assessors must still show the causative nexus – that it is the person’s mental impairment that causes the person to not be able to understand, retain or use or weigh that relevant information and not some other reason, such as the person being afraid to admit the truth about what they want to do or intend to do (and how sad is it that most of these decisions are just the things that the rest of us do without being hindered or having to explain our behaviour or seek permission?)
In other words, assessors must show that if they think the person is telling them what they want to hear, the assessor must provide evidence of what they have done to make the person confident that they are not going to use what they say against them, that the assessor has taken all necessary steps to enable the person to make the decision – even if it is an unwise one. Assessors should try to gain some trust between themselves and the person, and sometimes, as I have done in the past, that might mean recognising that the assessor is not necessarily the best person to do the assessment if that relationship is not conducive to effective communication.
The Mental Capacity Act 2005
39 Essex Chambers, A Brief Guide to Carrying Out Capacity Assessments, March 2019