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Last month saw National Mental Capacity Action Day (on 15th March) which was a good opportunity for lots of awareness raising about the issues involved in mental capacity. I saw a very good question to the QCS Ask Sheila page that got me thinking about when and why we undertake mental capacity assessments at all. The questioner was rightly concerned about being asked to complete reviews of capacity assessments by a certain day, and clearly that is not in accord with the principles of the Mental Capacity Act.
The Mental Capacity Act Code of Practice says we should assume people have capacity unless we have information to the contrary. When we go to the bank to draw money out, or go to a car showroom to buy a car, do the staff assess capacity to decide whether we have the ability to do the transaction? No, probably not, unless they have reason to think we may lack capacity.
Do not assume
Now caring for people in residential setting where we have information that the person may have a mental disorder is not quite the same, but there is still the important first step of assuming someone has capacity. The Code tells us we should not be judging capacity on assumptions about the person’s mental or physical condition. The Code describes the five principles of the Act– the first of these is about assuming capacity in the first instance. The Code goes onto to say the ‘starting assumption must be always that the individual has the capacity, unless there is proof they do not.’ Having a mental disorder is not on its own proof – there’s a difference between an assessment of someone’s mental state, and an assessment of their mental capacity. The Code of Practice goes on to tell us when we should be doing capacity assessments:
- If it appears that the person is having difficulty making a particular decision;
- If someone questions whether that person has capacity to make a particular decision;
- If the person has already been found to lack capacity to make a similarly complex decision.
Proving the case
Having to prove someone lacks mental capacity sounds a challenging task, but remember this is not a criminal trial where our test is beyond reasonable doubt. Our test is a civil law one – the balance of probabilities. On balance do you believe the person lacks capacity to make a particular decision?
So if someone asks if you have assessed everybody’s capacity yet – point to Principle One – we need to assume capacity unless there is evidence otherwise.