Can you dig it?

wine bottle

I often see guidance for those completing mental capacity assessments which suggest that, while the person may appear to be lucid and capacitous at first blush, if the assessor “drills down” or “digs deeper” they will be able to show that actually the person lacks capacity to make the decision. Yet as the guidance from 39 Essex Chambers tells us, “the presumption that P has capacity is fundamental to the Act. It is important to remember that P has to ‘prove’ nothing.

It reminds me of the criticism of the way some professionals use the MCA; that people with a mental impairment often have to demonstrate a degree of understanding in decision making that people without a mental impairment don’t.

Consider this scenario. I know it’s daft, but please put yourself in the shoes of say a person with a learning disability wanting to go to the pub on their own;

You are a social worker, it’s a Monday evening and you have had one hell of a day. It started with back-to-back meetings, the first one at 0830 (who arranges a meeting at 8.30 on a Monday?). In the afternoon a crisis developed regarding someone and by the time you get back in your car for the drive home, it’s gone 7 o’clock. It has been a stressful day.

On the drive back home, you stop at the off licence for a bottle of wine. You know you shouldn’t, it’s a school night, you have to be back on the road the following morning but nothing winds you down like a bottle of wine.

You tell all this to the guy behind the counter, maybe feeling a bit guilty for having a drink on a Monday night. The shopkeeper says to you,

“Are you sure you should be drinking tonight?”

“Excuse me?” you say.

“Are you sure you should be drinking tonight? You just told me you have to be back on the road in the morning; did you know that 23% of all drink-driving convictions are where the person was still over the limit the day after?”

“Oh, don’t worry, I’ll be fine. But thank you for your concern.”

“Well, I’m not sure I should be selling you alcohol. The effects of alcohol wear off differently depending of the age, gender, weight of the person. It can take over twelve hours for the alcohol units in that bottle of wine to wear off.”

“Well, I’m not sure it’s any of your business. I’ll be fine, I’ll just take the wine and pass on the advice, but thanks all the same. Anyway, I have one of those breathalysers at home, I can check in the morning if I am over the limit”

“What make and model is it”?


“You just said you have a breathalyser. What make and model is it? I need to be sure you are going to be safe. And it’s not just you I am worried about, supposing you hit a pedestrian? I have a duty of care…”

Ok, that conversation would never happen and if it did, you would tell the shopkeeper where to stick his bottle of wine and go elsewhere.

But it does happen all the time for people with disabilities. Last night I was at a gig in Bradford to raise money for musicians with learning disabilities to fund a music tour of Norway.  Brian Mitchell (social work lecturer at Bradford University and lead singer of The White Ribbons) pointed out that we all go out on a Friday night and take it for granted – no risk assessments, no best interests decisions, no risk management plans. But people with learning disabilities and autism, or people with a brain injury, mental health needs, dementia etc all have many hoops to jump through before they can do what we all do without question.

So by ‘drilling down’ or ‘digging deeper’, an assessor will eventually be able to prove any person could not make a decision, and then with a few typed words, easily link that inability to the mental impairment. And sadly, it is unlikely that assessment will ever be challenged. (By the way, it remains the case that since 2007, while I have been challenged many times about the outcome of my capacity assessments, not once has that been when I concluded the person lacked capacity; everyone agrees when I say that, I am only challenged when I say the person is able to make the decision).

Many readers will be wondering about the first Principle of the 2005 Act, that we have to assume the person has capacity unless proven otherwise? I wonder the same. I also wonder what efforts those professionals challenging me about my assessments made themselves without success? I ask to see their assessment in which they will have demonstrated they did all they could to help the person make the decision without success. Nine times out of ten, there is no assessment, and when there is, it is usually so poor it’s not worth the paper it is written on. For example, I saw one recently by a consultant on an acute ward, it said “Mrs Miggins has dementia and therefore lacks capacity to make wise decisions.”

But back to drilling down, digging deeper and raising the bar; the law and policy guidance does not tell us to do this. It is possible that a practitioner can so want a person to be autonomous and make the decision that they don’t ensure the person is truly making a capacitous decision. But that’s rare compared with people simply wanting the person to be incapacitous so they can then go on to make a decision for them and invariably it is a decision contrary to what the person wants, which is often what initiated the capacity assessment in the first place.

However, I met a man once who appeared lucid and able to make the decision but during the assessment it became evident that he did not understand his limitations, he thought he could walk and climb the stairs at home and that if he fell over, he would be able to pick himself up again. No matter how much I showed him the evidence he could not do that, including inviting him to demonstrate his mobility to me, he wouldn’t have it. But that was not determined by digging deeper, it was simply that I applied the MCA and found that he could not understand the relevant information and that on a balance of probabilities, it was because of his dementia.

Of course, it could have been that the man was afraid of admitting to me his limitations, fearing I would make a decision for him. It is a massive judgement call we have to make. As Lucy Series tells us, “Capacity assessment is not some kind of scientific process where capacity is ‘measured’, it’s a social interaction – often with hugely high stakes for the person being assessed. If I were having a conversation with a person and something I desperately wanted hinged on it, I think I would probably try to convince them that it was a good idea and minimise the risks. That’s how some people argue. That’s a pretty standard persuasive tactic when arguing a point. It may not mean that a person doesn’t understand the risks – it might mean they don’t want to hand a person they regard as powerful any more ammunition to deny that it’s a good idea.

So it was a judgment call, and I hope I got it right when I concluded the man did not have the mental capacity to decide to go home. But we must reflect continually on our practice, on our values and on our competence and prejudices.

I undertook a capacity assessment recently where the woman had a speech impediment. She struggled to get her words out, she sometimes lost track of what she was trying to say, such was her anxiety. In my mind, I was thinking she was incapacitous, but when I looked down at my notes, her responses were all logical and reasoned.  I had to allow for her being nervous and anxious. She asked me what the consequences of the assessment were, she said, “What happens if I fail?” and I wondered; Who gave me this power and why does she think I have power over her? The answer of course was no-one, I don’t have a power at all; a capacity assessment provides a defence, not an authority.

So no digging deep, no drilling down, no raising the bar higher and higher or judging people because they cannot remember your name from a previous visit. We just need to follow the process as described in the MCA, in the Code of Practice and in the subsequent caselaw. If the person is capacitous, and I have followed the process, what the person goes on to do is no more my business than it is the business of a shopkeeper whether or not you have a bottle of wine on a Monday evening.

39 Essex Chambers, “A Brief Guide to Carrying Out Mental Capacity Assessments”, March 2019

Lucy Series, The Small Places, “A serendipitous judgment”, September 2012









Telling us what we want to hear

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

All life is an experiment – I am not vulnerable!


I once worked with a young woman called Emma (not her real name) who had a mental impairment and would sometimes go into town alone, whereupon two young women would sometimes meet up with her. Emma would withdraw £200 from the ATM which she would share with these people. After an hour or so, the two women would desert her. The care home staff where Emma lived wanted to prevent Emma from going out on her own, they said it was ‘mate crime’ and that Emma was being financially abused.

I met with Emma and put this to her. She said, “I know they are not my real friends, they only want my money. I’m not daft.” I asked what would she do if it happened again? She said, “The same probably. It’s worth £200 to me because it feels like I have friends, I can pretend to have friends even if it’s just for an hour.”

Emma’s story made us feel sad and angry that people would take advantage of her and we wanted to protect her. But she did not want us to do that. She had the mental capacity to make the decision and, putting it bluntly, she did not care how we felt.

I also worked with a man who was nursed in bed at home but his son – frustrated with his dad’s deteriorating health – would shout at him. We wanted to stop the son from shouting at the older man, possibly apply to the court to prevent him from visiting altogether, but the man told us and the police to do nothing. He acknowledged it upset him when his son lost his temper but he loved him and wanted him to be around. In time, he died at home with his son visiting him to the end. As social workers with both children and adults know well, from the perspective of the person a not-very-good family is usually better than no family.

Had the legislation been available, we could have over-ridden their decisions to protect them. They would have been protected from abuse, so we would feel better, but would Emma or the older man feel better? If a capacitous person wants our support then we give it; if they don’t, we must walk away, no matter how upset or concerned we are.

I am reminded of that much quoted speech by Sir James Munby (‘When is Safeguarding Abuse?”) in which he says that if local authorities are to justify intervention then what follows must be better than what went before. I have no doubt the intention of the Vulnerable Adults Bill is not to wrap all people in cotton wool, but to take what Sir James calls a proper balance in supporting those “less well equipped” to deal with risk than others.  If you want to find out more try the brilliant Lucy Series @thesmallplaces –

However the proposals for a Vulnerable Adults Bill concern me because, although I have little doubt that while the courts would continue to respect the right of an individual to make an unwise decision, where such is to be over-ridden that must be by a higher authority than a council employee. Indeed, I don’t see why the inherent jurisdiction of a judge sitting in the High Court does not already meet this need. And as I see it, treating people who are vulnerable because of their disabilities differently from all other people is discriminatory.

In practice then I fear such an Act would be used against people, not to support people, and there would be little consistency in its application by health and social care workers. The culture of paternalism and protection is still deeply embedded in some quarters. For example, I have been challenged many times about the outcome of a capacity assessment I have completed, but not once when I said the person lacked capacity to make the decision, only when I said the person had capacity. That is absurd; the assumption of capacity unless proven otherwise should be well established but it is not, even ten years on.

I doubt those drafting the Bill would want this to happen but in practice many people with dementia (or not!) in hospital making the natural decision to return to their home would be deemed ‘vulnerable’ by ‘concerned others’ and needing protection. The ward staff would want this because they would not want to be held responsible in the event something bad happens to the person. This paternalism exists now in spite of the law preventing it. In my experience some professionals are not afraid so much of something bad happening to the person, they are afraid of something bad happening to them as a consequence of something bad happening to the person!

I tell social workers all the time that if they do what the MCA says then Section 5 of the Act will protect them from liability. But how could a social worker trying to defend the right of a person to make an unwise decision deal with such ward staff or police officers or concerned neighbours telling them that they must do something and citing the new law? Who among us wouldn’t be more worried about their job than the rights of the relevant person? The MCA is already intentionally used against people so what then would be the chances of a person unfortunate enough to be objectively considered ‘vulnerable’ appearing on the radar of health and social care retaining their autonomy?  See the case of Fluffy the Cat if you don’t believe this to be the case –

By the way, in time Emma found a real friend and moved out of the care home and into a shared flat and those two women lost their free money. What she had needed was support from her social workers, not for her social workers to decide what was best for her.

Ian Burgess, BIA and MCA Professional Practice Lead, on behalf of the Adult Principal Social Worker Network in England


Lymbery, M (1998). Care Management and Professional Autonomy: The Impact of Community Care Legislation on Social Work with Older People. The British Journal of Social Work 28, 836-878.

Munby, Lord Justice (2011). Safeguarding and Dignity: When is Safeguarding Abuse: Keynote address by Lord Justice Munby to the Rotherham, Doncaster and South Humber Mental Health NSH Foundation Trust’s AMPH and Social Care Conference.