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