Mental Capacity Assessments – when should you have one?

Mental Capacity Assessments – when should you have one?

Questions-and-decisions-300x205Mental Capacity Assessments are not the same as as an assessment of cognition

Many families find that decisions are made about vulnerable older relatives without a proper Mental Capacity Assessment being carried out. It seems there is also sometimes little consultation with the person in care or their representative.

Many people are confused about what a Mental Capacity Assessment (MCA) actually is – and when it should be used. This article aims to make that clearer.

We’ve also included links to some news articles and case studies to show how Mental Capacity Assessments should work, and how they relate to Best Interests meetings and Deprivation of Liberty Safeguards (DoLS).

What is mental capacity?

When a person has ‘capacity’, they have the ability to make a specific decision for themselves – at the time the decision needs to be made. A person who lacks mental capacity does not have this ability.

The Mental Capacity Act (2005) is the legislation that governs this. Essentially, it’s about protecting a person’s right to decide what happens to them, and this is particularly pertinent to a care situation, of course.

If a person can’t make a specific decision or give consent to something, the legislation is supposed to ensure any actions subsequently taken by other people are in the person’s best interests.

However, reports from many quarters including the Care Quality Commission, indicate that many people working in health and social care often lack vital knowledge and training about this, and this can lead to decisions being made about a person without the proper process being followed, without the proper safeguards being adhered to – and without it all being properly documented.

If a person’s ability to make a decision about something and/or give consent to something is in doubt, a Mental Capacity Assessment should be undertaken.

It may be easier to understand Mental Capacity Assessments by looking at what they’re not:

  • A Mental Capacity Assessment is not about a person’s general cognitive ability or the extent of a person’s memory. Instead, broadly speaking, it looks at whether that person can make a specific decision about a specific thing at a specific time.
  • A Mental Capacity Assessment is NOT the same as a memory test or cognitive test (sometimes referred to as an MMSE or an ACE-R test).
  • A Mental Capacity Assessment is not used for scoring the care needs in the Cognition domain in an NHS Continuing Healthcare funding assessment.
  • A Mental Capacity Assessment is not a statement of a person’s ability to make decisions in the future. It’s about a decision that needs to be made now. Capacity can also fluctuate; for example, a person’s ability to make a decision about something now may not be the same in a few weeks’ time.

This two-page leaflet from Woodfines Solicitors summarises the key questions a person should be asked in a Mental Capacity Assessment.

In what context is a Mental Capacity Assessment used?

These are just a few examples:

  • decisions about going back home after discharge from hospital
  • decisions about where a person will be cared for, e.g. at home, in a care home, etc
  • decisions about what care will be provided
  • decisions about whether a person should be restrained from going out, e.g. having the freedom to walk in and out of a care home
  • decisions about taking prescription drugs
  • decisions about covert medication
  • decisions about the use of bedrails

…and so on.

This is just a very brief overview to highlight some of the basics. The articles below go into much more depth and also highlight specific cases:

Cambridge News: The case of a man who was moved away from his family without the proper assessments being done and with his family’s wishes ignored and without proper records being completed

GP Online: The case of a person who is considered at risk to herself and others

Stowe Family Law: The Ombudsman’s declaration that capacity assessments need to be formally recorded/documented.

Quality Compliance Systems: A good overview of the whole topic

Community Care: Restricting a person’s liberty falsely: Lack of attention to Mental Capacity Assessments and correct Deprivation of Liberty Safeguards by care providers

Community Care: More on Deprivation of Liberty – and the issue of whether a person has ‘freedom to leave’

Community Care: More on Deprivation of Liberty – forms, checklists, paperwork, and safeguarding the person at the centre of the process

Also remember that, in all this, if you’re acting on behalf of a relative a power of attorney is vital. Read more about powers of attorney.

20 Comments

  1. Petet 4 months ago

    My partner has Alzheimers. She is 68. She has no ability to communicate as she cannot speak anymore and cannot write down what her problem is or answer any questions. She is doubly incontinent. She certainly cannot make a specific decision about a thing right at that moment or for the future. All communication has ceased. She has no ability to take medicine responsibly or tell anyone if she is hurting, unwell, or needs something, including choice of food items, or that she would like to go to bed. She has to be continually assessed.

  2. Author
    Angela Sherman 4 months ago

    Remember that capacity must relate to a specific decision that needs to be made at a specific point in time by the person being assessed – it’s not a general view of a person’s cognitive ability. Also, there should be the paperwork to match.

  3. Richard 5 months ago

    My understanding is that informed consent is required for capacity assessment. Hosp now propose two more MCA tests surely this is just harassment to gain control over her decision making; In the last year 2 social workers, independent mental health, advocate solicitor, chc nurse assessor independent solicitor ,registered mental nurse all say she has capacity. How many bites of the cherry do they want !!

  4. Richard 5 months ago

    Hospital consultants say MiL has lost capacity, independant RMN says she has capacity (funny how this happened after she begun legal proceeding against hospital for clinical negligence.)

    advice please

  5. Atland youth 12 months ago

    My uncle is very ill. He lives in a house. An assesment was done at the house with him and he was very unsafe on the stairs. It took two people to support him on the stairs and even with this support he and his carers are at risk of falling off the stairs. Should he have a mental health capacity to discuss his understanding of the situation?

    Would appreciate any advice.

    Thanks in advance.

    • Author
      Angela Sherman 12 months ago

      Atland – A Mental Capacity Assessment is not about a person’s general ability or general understanding, but instead it’s about a person’s capacity to make a specific decision and a specific time about a specific thing. For example, if your uncle needs to make a decision about whether he remains at home, and if there is doubt about his mental capacity to make that decision, then a Mental Capacity Assessment should be carried out – for that specific decision.

  6. OMAR 1 year ago

    I am struggling with a question – if someone could help it will be really appreciated. It’s about Mental Capacity ACT 2005. The question is The Mental Capacity Act 2005 does not contain sufficient safeguards to protect the incapable patient?

    • Author
      Angela Sherman 1 year ago

      Can you explain a bit more about what you mean, Omar?

  7. Isobel Mann 1 year ago

    Yes, a patient can be deemed capable of creating a Lasting Power of Attorney whilst detained and under s17 home leave of the Mental Health Act 1983. It depends on whether they have capacity at the time to create the power and in accordance with the requirements of the Mental Capacity Act. The Mental Capacity Act has five clear priniciples and works on the assumption that, where possible, people should be enabled to make their own decisions unless they clearly lack the capacity to do so. Any decision must be made in the ‘best interest’ of the person on whose behalf the decision is made.

    • Author
      Angela Sherman 1 year ago

      Thanks very much, Isobel – appreciated.

  8. Gordon baxendale 1 year ago

    Can a Section 3 mental health patient on Section 17 leave still have capacity to sign a Lasting Power of Attorney (LPA)?

    • A patient can still create a Lasting Power of Attorney whilst being detained under s3 of the Mental Health Act and whilst on s17 leave provided they have the ability to understand the implications of the power they are giving. Being detained or treated under the Mental Health Act is not necessarily a barrier to making a Lasting Power of Attorney but it is important that there is a full and proper assessment of the capacity and understanding of the person wanting to make the power.

      • Author
        Angela Sherman 1 year ago

        Thanks very much for your comment, Nadiya.

  9. Karen 2 years ago

    We have just had the MDT DST meeting for the NHS CHC funding for my Dad and have to wait for further assessments to be carried out such as a mental health one before the DST is submitted, then I read these posts! Oh how awful for people to be going though sometimes years of fighting for their rights….!!!I had NO IDEA it could be as bad as this, I will be looking in regularly on this site for advice as we wade though the process on what seems like an unfair and cruel fight! I am NOT looking forward to it.

    • Author
      Angela Sherman 2 years ago

      Keep going, Karen, and let’s hope you don’t face too many hurdles along the way.

  10. Colin Sproul 2 years ago

    My wife, diagnosed with Alzheimers in October 2007, NHS sent her to Care Home in Bedfordshire November 2008, after deterioration by wife and in level of care, I moved her with agreement from Bedfordshire to Care Home in MK September 2010, not accepted for CHC January 2011.
    CHC awarded following further assessment February 2012, mental powers almost nil and no communication possible, then in re-assessment September 2103 CHC withdrawn but I appealed because Nat Framework for NHS CHC not adhered to and CHC reinstated. December 2014 Re-assessment assessor admitted my Wife has no cognitive ability and is able to see only light and dark, and advised she should not have CHC. At end of January 2015, the CHC Panel decided my wife has still Primary Health Need and reinstated Fully Funded CHC for a further THREE MONTHS before another assessment.
    I anticipate that no cognition, communication, nil mental capacity, but strong physical ability to hurt/harm self or carer and need for 24/7 care will not stop the CSU trying every trick to avoid CHC at the point of need. I await the next round. [Mental Capacity has never been considered by most assessors.]
    The CSU Retrospective Review Unit said in August 2014 that I might expect the result of my claim [made in mid 2012] for 2011-2012 might be decided in the next 12 months.

    • Angela 2 years ago

      Colin – you mentioned: “I anticipate that no cognition, communication, nil mental capacity, but strong physical ability to hurt/harm self or carer……” Keep in mind that mental capacity refers to your wife’s ability (or lack of) to make a specific decision that needs to be made now – rather than it being a measure of her general mental/cognitive state.

      • Chris-G 2 years ago

        Hi all, Just to twist this a bit….. My mum has no cognition. No Communication…. She has a disease that affects her and has made her mentally ill in the most serious way possible.

        Bearing that in mind….. With the report in the times today about the teens and children with their mental illnesses and that the Times considers it to be the role of the NHS to meet the cost. Why the hell is my mum expected to pay for her treatment?

        After all. An out patients appointment with consultant: GP to prescribe: Nurse to visit if required: Any other care is surely the same as my mum requires and is expected to pay for.

        Any comments?

        • Author
          Angela Sherman 2 years ago

          Good question, Chris.

  11. Chris-G 2 years ago

    Hi Angela,
    I would assume that many weeks of morphine at maximum dose along with pain; a cornucopia of other drugs such as gabapentin, along with a UTI and MRSA and Gangrene because of a failed correction to a failed 2 year old leg amputation and brain injury acquired dementia might have been the main reason for My FiL refusing post operative meds and “dying” twice as the result.

    Then soon afterwards refusing treatment having been admitted with several inches of his thigh bone protruding from the failed surgical wound.

    But then again who am I to question the doctor (regarding the Mental Capacity Act) that allowed my FiL to refuse important post operative meds and how dare I (later on) question the doctor that considered him mentally capable of making decisions to refuse life saving treatment and send him home until his mind was clear enough to make the decision to be treated?

    I know that on both occasions a Mini Memory (Alzheimers test), was done. That test has nothing to do with assessing someone according to the Mental Capacity Act.

    The 2005 MCA was not used to assess his needs. One doctor even told me that they knew nothing about it because they had only been qualified as a surgeon for few weeks. (Only 9 years since the act became law). (No exaggeration no fib!).

Leave a reply

Your email address will not be published. Required fields are marked *

*

2100 characters max. All comments are moderated in line with our Acceptable Use Policy and our Terms of Website Use.