Mental Capacity – a practical discussion
In a previous social care job, working for a local authority, I was heavily involved in the preparation and introduction of the Mental Capacity Act 2005 to ensure that social care staff understood their responsibilities in relation to this new legislation.
Lots of emails were sent, training workshops held, and verbal support provided to adult social care staff to prepare them for the introduction and ongoing application of the new Act.
As time progressed, I discovered that staff actually wanted to know more about how to carry out a formal mental capacity assessment in practice. It was felt by practitioners that they had been given an abundance of theory and guidance but not enough practical support to enable them to confidently complete and record mental capacity assessments.
Practitioners I spoke to expressed an element of fear in the completion and recording of a mental capacity assessment. It is a key document and practitioners were concerned that they would ‘get it wrong’ and, as a consequence, could ultimately be challenged in court. I would reassure staff expressing this fear and ask them how many social workers they knew who had been challenged about a mental capacity assessment in court to which they would reply ‘none’.
Practitioners were aware that the outcome of a mental capacity assessment on a person held a lot of weight and affected their lives. For example, if a person was deemed to have mental capacity to make a particular decision they could carry on with risky behaviour and this could have serious consequences. The practitioner involved may worry about such consequences on the person, others and themselves as the professional deemed to allow such a situation to carry on. On the other hand, a person who is assessed as lacking mental capacity may be denied their right to make a specific decision in their lives. Again, the practitioner may feel personally responsible for this and the impact on the individual’s life.
In my experience, professionals became more anxiety-prone about the outcome of a mental capacity assessment where the case involved serious risk issues. Professionals can be risk-adverse, and fear being blamed.
However, mental capacity assessments need to be seen as a set process to follow to help professionals determine if a person can make a particular decision at a particular time. It is impossible to know what a person is really thinking, but, if sensible relevant questions are asked, in an appropriate manner, it is possible to reach a balanced outcome. This process then needs to be robustly recorded to evidence the steps taken to reach the given conclusion. The professional then has a record to refer back to if needed to support their reasoning about a particular decision at a particular time.
Sounds simple, doesn’t it? However, in practice the subjectivity of some mental capacity assessments and the failure of staff to follow the process and robustly record it suggests that this is far from simple.
I discovered this myself when asked to accompany a social worker to visit a woman whose mental capacity needed to be assessed, to determine if she was able to make a decision to remain living in her own home to receive care and treatment.
This was the very first mental capacity assessment I was involved in and my line manager sent me to accompany the worker, who was struggling, and was in need of support. As a staff member who had been heavily involved in the introduction of the Mental Capacity Act, I had lots of knowledge in the area and was regarded as an appropriate person to provide this support.
The social worker explained to me that the woman we were about to visit had numerous physical and mental health issues and there was substantial evidence to suggest that she was being financially exploited by her son. She was living alone with a care package, but her physical and mental health had significantly deteriorated and she was unable to feed herself to an adequate standard because of lack of money.
The social worker and I visited the woman in her own home and began asking questions about her current situation. She answered our questions and was able to express her opinions and views. When we came to determining if the woman could weigh up the decision about where she should live to receive care and treatment, we were both unsure.
On reflection, we made several mistakes. We did not consider and prepare questions relevant to the situation and circumstances prior to the visit, instead doing this spontaneously. Our professional discussion prior to the visit, mainly during the car ride to the house, focused on the woman’s situation and relevant factors. More time should have been spent on sharing and discussing information about the case, in order to adequately prepare for the visit and agree on how we would complete the mental capacity assessment.
I therefore learnt first-hand that despite having knowledge about the Mental Capacity Act, putting this into practice was very different.
In my work over the years with social work staff I discovered that they would often claim that they understood how to complete mental capacity assessments however, their recording suggested otherwise. I had numerous conversations with social care staff who admitted their concerns about ‘getting it wrong’ and lack of confidence in completing a robust assessment. On the other hand, I had conversations with others who claimed, ‘of course they knew how to carry out a mental capacity assessment’. However, their explanation of how they had come to their concluding decision was weak.
In a previous role as a Principal Social Worker, I completed an audit of mental capacity assessments and found lots of examples of weak recording, lack of clarity about the actual decision being made and the merging of several decisions in one assessment.
I also had discussions with senior members of staff who, in my opinion, did not fully understand the Mental Capacity Act in practice. This is not a criticism of social care staff, merely an observation and evidence of the need for a more practical approach to support staff when completing mental capacity assessments.
As already noted, mental capacity assessments are subjective: it is impossible to know what is actually going on in a persons’ mind. However, the assessment is a process designed to lead to a professional opinion on this and you must be able to explain how and why you have reached your conclusion. This is why the recording of the assessment is crucial.