Key Legal Terms related to Mental Capacity
At Thornton & Lee we take pride in how our Mental Capacity Assessors can break down legal terms into jargon free and accessible language during the assessment process, to make sure that the person being assessed has the best opportunity of understanding, retaining, and weighing up the relevant information during their mental capacity assessment.
However, you might still see some legal terminology that you have not seen before in our reports, and so we have written this guide to help you understand exactly what we are referring to when you read our reports.
What is the Mental Capacity Act (2005) and its Code of Practice?
The majority of mental capacity assessments undertaken at Thornton & Lee are completed under the Mental Capacity Act (2005). The Mental Capacity Act (2005) and its Code of Practice are the legal underpinning for most mental capacity assessments undertaken in England and Wales.
The Mental Capacity Acts goal is to protect but also empower those who might not have mental capacity, focusing firstly on the person’s right to make their own decisions, however unwise that decision might appear to others. Importantly, the Mental Capacity Act (2005) sets out that before undertaking important actions on behalf of the person such as care, medical treatment or legal decisions, if there is a reasonable belief that the person might lack mental capacity for that decision then an assessment of mental capacity must be carried out.
Whether an assessment is formal or informal depends on how significant the decision is that needs to be made. Given that the majority of assessments undertaken at Thornton & Lee are important legal instructions such as a person executing a new Lasting Power of Attorney, or an applicant applying to be a Court appointed Deputy to support with making decisions for a person not believed to have capacity to manage their own property and financial affairs. Our assessments are undertaken in a formal and structured manner recording our evidence and conclusion of the mental capacity assessment in a robust Court Standard report.
The Mental Capacity Act (2005) Code of Practice is official guidance published to support those who work and care with people who can’t make decisions for themselves. The Code of Practice is also used by those undertaking mental capacity assessments to make sure they are always using best practices in the approach and completion of mental capacity assessments. Also, the assessments undertaken have empowered the person being assessed to be at the centre of the process including actively seeking their wishes, feelings, and views in addition to the assessment process also being legally robust and Mental Capacity Act (2005) compliant. The Code of Practice also sets out what others must do, and when they might act in the best interests of a person who lacks mental capacity to make the decision for themselves, making it a ‘must read’ for those holding a Lasting Power of Attorney or those Court appointed as a Deputy for a person without capacity.
What is the Mental Capacity Act (2005) Two Stage Test?
The Mental Capacity Act (2005) has within it a ‘two-stage test’ that Mental Capacity Assessors must follow. Firstly, Assessor’s must establish through asking relevant questions and gathering evidence if the person can understand, retain, and weigh the relevant information for the decision which needs to be made, in order to communicate their decision. Secondly, the Assessor must analyse and make a conclusion if the reason that the person cannot understand, retain and weigh the relevant information for the specific decision is as a direct result of an impairment or disturbance in the functioning of their mind or brain. Common impairments or disturbances in the functioning of a person’s mind and brain might include for example; dementia, a learning disability, a mental illness or a brain injury. However, the Assessor must be able to evidence the ‘causative nexus’, which means the link between how the persons impairment in the functioning of mind and brain prevents them from being able to make the specific decision, at that specific time.
It is essential that all persons involved with assessing mental capacity understand that a diagnosis of a particular impairment or disturbance in the person’s mind or brain most often does not disqualify them from having mental capacity and that the assessment needs to follow the two stage test regardless of the diagnosis, further establishing how the impact of that impairment or disturbance in the persons mind or brain prevents them from being able to make the decision.
What does the ‘Presumption of Mental Capacity’ mean?
The presumption of mental capacity is a key principle of the Mental Capacity Act (2005) meaning that all persons should be assumed to have mental capacity to make their own decisions until the two-stage test has been completed. Further to this, the Mental Capacity Assessor must be satisfied that they have done everything possible to help the person understand, retain and weigh the information relevant to the decision to be made, before analysing the evidence collected to establish if the person is unable to make the specific decision as a direct result of an impairment or disturbance in the persons mind or brain preventing them from being able to make the decision.
The Mental Capacity Act (2005) places a strong emphasis on ensuring that no person is discriminated against in terms of assumptions regarding their mental capacity for a specific decision on the basis of age, disability, medical conditions, beliefs, or an apparent inability to communicate, and crucially that a determination of incapacity cannot be made solely on the grounds of the decision being deemed to be unwise.
What is the ‘Relevant Information’ for a Mental Capacity Assessment?
When undertaking a mental capacity assessment, the relevant information is the information that the person being assessed must be able to understand, retain, use and weigh in order to communicate their decision. It is imperative that the Assessor does everything practicable to offer the person accessible explanations tailored to the person’s individual needs, of the relevant information for the specific decision to be made.
Typically, the relevant information includes the nature of the decision itself, offering the person a clear definition of the decision which needs to be made, why this decision needs to be made including any appropriate context or background, and the likely impact of making the decision or not making the decision which includes any positive or negative consequences associated with making the decision.
What does ‘Practicable Steps’ mean in Mental Capacity Assessments?
Practicable steps means that the assessment has been undertaken in a manner which specifically considers and is appropriately adapted to the person’s specific needs and circumstances, ensuring everything possible has been utilised to support the person to make the decision.
This includes ensuring that the Assessor has explained the relevant information in a way that is best for that person and might include verbal jargon free accessible descriptions, or the use of pictures, or multiple-choice words for example. Practicable steps also include that the assessment has been undertaken at a time and place that is best for the person being assessed, for example, some individuals feel more relaxed having an assessment in their own home, whilst others might feel most relaxed over a video assessment, or at their day centre, or a trusted family members house.
Practicable steps might also include the involvement of others who are best suited to support the person’s needs, such as a Speech and Language Therapist, or a favourite carer/support worker for example.
At Thornton & Lee all of our Mental Capacity Assessors are trained in completing mental capacity assessments for those who are non-verbal. We have a vast library of resources and also experience in using a variety of different communication methods. So, you can be reassured that the person being assessed is given the maximum opportunity to engage in a meaningful way and the right platform to be able to communicate any wishes or views that they might have non-verbally.
What does ‘Cognitive Optimum’ mean?
At Thornton & Lee we triage all referrals very carefully to ensure each person is assessed at their cognitive optimum, which essentially means that the appointment took place when they were at their best in terms of their memory and understanding.
For example, a person with Alzheimer’s might be quite bright in the mornings but become increasingly confused by the end of the day. Hence the appointment would be booked in the morning.
Some types of acute illness or infection can impact understanding and memory too, such as a urine infection, so the appointment would be booked once this has been resolved. The Mental Capacity Assessor will also in addition to the timing of the assessment consider the location, involvement of trusted others, and communication method to make sure that as far as possible the person is relaxed, comfortable and the communication approach gives them maximum scope to both understand but also express any wishes or views they might have during the appointment.
What is the Court of Protection?
The Court of Protection is a specialist Court whose sole function is to consider and make decisions in the best interests of individuals who are thought not to have mental capacity to make such decisions for themselves. The Court of Protection mostly deals with decision-making regarding individuals who are thought not to have mental capacity around their property and financial affairs, or their personal health or welfare.
At Thornton & Lee the most common request we have to complete a mental capacity assessment, is to complete a COP3 form. Which is a specialist assessment of capacity form used by the Court of Protection, used to establish if a person has the mental capacity to make a specific decision.
The Court of Protection only makes decisions in the best interests of those who have been assessed as lacking the mental capacity to make that decision for themselves. Form COP3 has two parts; Part A and Part B. Part A is completed by the person making the application to the Court of Protection, and Part B is completed by the specialist Mental Capacity Assessor.
Who is ‘P’? and why does ‘P’s views matter during Mental Capacity Assessments?
You might notice ‘P’ referred to in Court of Protection documentation. ‘P’ simply is the person assumed not to have mental capacity whose case is being put before the Court of Protection to have a decision made in their best interests. ‘P’ is used throughout Court of Protection proceedings so that all involved know who the person at the centre of the proceedings is and who is being referred to during the proceedings.
Why are Mental Capacity Assessments ‘Time and Decision Specific’?
The reason that a mental capacity assessment is time specific is that it might be possible in some cases that a person goes on to regain the mental capacity to make that decision. Common instances of this include when a person has been acutely unwell with an infection or experiencing a delirium, and once these matters are resolved then the person can recover the capacity for the decision that needs to be made.
Another example is a young adult with a learning disability who after benefiting from education around the specific issue goes on to be able to acquire the mental capacity to be able to make that decision. Or a person who has experienced a brain injury who following successful rehabilitation once more recovers the mental capacity to make a specific decision.
Wherever possible and practical to do so, mental capacity assessments should be delayed until a person is at their optimum recovery post-illness/ injury or has received crucial rehabilitation or education about the decision which needs to be made, to ensure the person is given the maximum opportunity to understand and engage meaningfully in the mental capacity assessment.
It is paramount that all mental capacity assessments are clear as to the decision which needs to be made, and the relevant information that the person must understand, retain, weigh and communicate might be vastly different between different decisions and between the same decisions but differing circumstances of the person. Depending on the decision to be made, the relevant information that the person must understand might be quite simple and straightforward, or it might be very complex. However, the emphasis is still on the Assessor to ensure that the relevant information has been accessibly explained to the person being assessed in a way that is appropriate for their specific needs and circumstances.
How long does it take to complete a Mental Capacity Assessment?
It depends on the individual being assessed. If they enjoy chatting with our Mental Capacity Assessors, as is often the case, then the appointment can take anything from 45 minutes to 2 hours. However, if the person is very poorly and is struggling to engage with the Assessor despite the supportive and kind approach then the assessment will be streamlined to gather the relevant information as promptly and efficiently as possible.
What is ‘Coercion’ and ‘Undue Influence’ and why does this matter during a Mental Capacity Assessment?
Coercion is ‘persuading someone to do something’, and undue influence is ‘unfairly influencing an individual’s decisions usually using power or authority, taking away their free will in decision making’.
When we meet with an individual to complete a mental capacity assessment another essential part of the appointment process when executing a new Will or setting up a new Power of Attorney is exploring coercion and undue influence with the person being assessed to ensure that they are making these legal decisions of their own free will and not as a response to pressure from anybody else. An executed Property and Financial Lasting Power of Attorney is essentially affording the attorney legal authority and free reign to attend to the donors’ affairs, leaving the donor vulnerable to theft or financial exploitation should the attorney not have the donor’s best interests at heart.
When it comes to executing a new Will, proposed beneficiaries might be set to inherit significant sums upon the testator’s death, and as such the Assessor must be satisfied that no proposed beneficiary be attempting to pressure or influence the testator in their decision making as to the division of their estate in the Will.
If an argument can be made that the person who made the Will was being coerced at the time it was executed, then the Will may not be valid, and vulnerable to being successfully contested later down the line. Consequently, all face-to-face assessments completed for a new Will or for Lasting Powers of Attorney must be undertaken without any proposed attorney or beneficiaries in attendance, although they are welcome to be at the appointment venue for initial introductions and to ensure that their loved one is at ease and comfortable to proceed, before leaving.
What is a remote Mental Capacity Assessment?
A ‘remote’ assessment is an assessment of mental capacity undertaken over video as opposed to face-to-face. At Thornton & Lee we undertake many assessments virtually each week as this often suits our clients as an efficient and cost-effective option for a mental capacity assessment.
The essential aspect to consider when weighing whether the assessment should take place face-to-face or virtually is the impact on the person being assessed. The Mental Capacity Act (2005) Code of Practice is clear that the Assessor must take all practicable steps to ensure that the person being assessed is supported to understand and engage with the assessment and so ultimately video assessments can be utilised for those where it is evident that they will not be disadvantaged from understanding, retaining, using and weighing the relevant information for that decision by the assessment taking place virtually over a face-to-face appointment.
At Thornton & Lee we suggest that if the individual is having a mental capacity assessment for a new Will or for new Lasting Powers of Attorney and they are unable to facilitate the video appointment themselves, an excellent solution is for the video assessment to take place at their Legal representative’s office, with support there to operate the video technology. This approach ensures that the report produced is legally robust and can fully and objectively explore coercion and undue influence, which can then be documented within the report, making it legally robust.
Get in touch today to discuss your Mental Capacity Assessment needs
If you are interested in having a mental capacity assessment completed do get in touch with us today by completing our contact form here or by telephoning 0333 772 9315 and a friendly member of our team will be in touch to discuss your needs.