Updated: Sep 22
As we know, the Mental Capacity Act (2005) provided us with a theoretical framework for the assessment of mental capacity. However, transferring theory into practice is not always as easy as we would hope and even 14 years after the MCA came into effect, there are some very real challenges faced by clinical staff.
So, I have briefly highlighted below five of the most common challenges and how to overcome them.
1. Broaching the need for an assessment
This is often overlooked in people’s top five challenges, but it is a very real hurdle. How do you approach the subject with a patient in such a way that they agree and remain engaged in the process?
Reluctance to have these types of conversations nearly always stems from fear. Fear of upsetting the person, of saying the wrong thing, etc. The reality is that most of the time the patient will be aware of any issues that may be affecting their capacity and any objections they have will come from fear of what the assessment and outcome might mean.
Be clear about the reasons for the assessment and emphasise that it is about ensuring the right and best outcome for the patient. Reassure them that your job is to show them at their best and you’ll support them to do this. Also explain that should they struggle with anything, you will explore this with them. Create that safe space and have a non-threatening conversation.
Obviously, there may be times when the person is so cognitively impaired or lacking insight that they will not engage with the assessment. If this is the case, ask yourself, do I already have enough evidence to make a decision, based on the balance of evidence? And is their lack of engagement evidence of a lack of capacity? 2. Diagnosis or impairment?
The assessment framework as outlined in the Mental Capacity Act is often referred to as the ‘2-stage test’. The first stage is widely referred to as ‘The diagnostic test’. This can cause confusion and challenges amongst practitioners as they try and ascertain a diagnosis where none exists.
Often practitioners get hung up on the need to have a diagnosis when one is not actually required. What the Act actually asks is “Is there an impairment of, or a disturbance in the functioning of, the mind or brain?” – this is not the same as a diagnosis.
A ‘diagnosis’ is a label that is given to a predetermined set of symptoms. An ‘impairment’ is a lack of correct functioning. As we know, a diagnosis follows symptoms and evidence of impairment of functioning, so it is perfectly possibly to have an impairment but not a diagnosis.
Therefore, if there is no diagnosis but you have evidence of an impairment, you are good to go. Just be mindful that if there is no diagnosis and no evidence of impairment, then you must assume capacity.
3. Supporting the individual
Principle two of the MCA states that “A person must be given all practicable help before anyone treats them as not being able to make their own decisions”. But what does this actually mean in practice and how far are you expected to go?
As with so much of the MCA, a key principle here is to consider what is reasonable in terms of support. If they have communication needs or use communication aids, then you would be expected to bear this in mind and support appropriately. If you have access to a speech and language therapist and time allows, then you should be utilising this resource. However, if you don’t have access to this resource or it would take weeks to access, when the decision needs to be taken today and can’t be delayed, then this is no longer reasonable or ‘practicable’.
As long as you can evidence that you have taken all reasonable steps to support the individual to engage in the decision-making process, you’ll be fine.
4. Identifying the specific decision in question
The starting point for any assessment is correctly identifying the specific decision to be assessed for. It may seem obvious but getting this wrong means the rest of the assessment will be wrong.
Always try to be as specific as possible when identifying the decision to assess for. For example, capacity to make decisions about Health and Welfare, covers a multitude of decisions ranging from taking medication to deciding who to have contact with or where to live. It may be that the individual has capacity to manage their own medication but not to decide where to live.
By lumping them all in together you may inadvertently stop a person being able to make some decisions that they do actually have capacity for.
5. Validation of information
Although simple in theory, this is often very difficult to do in a clinical setting. As we know, a patient can tell us anything in an assessment and the challenge for practitioners is how do I know if what they are telling me is true? There are a number of different sources we can use such as family members, other professionals involved in their care, our own knowledge of the patient and our own observations.
However, many of these will require time to check. Don’t be too eager to form an opinion about a person’s capacity until you have had a chance to check other sources. If time doesn’t allow you to check all the resources, check the ones you can and make a decision based on the information you have been privy to and on the balance of probabilities.
Should you get information further down the line that makes you change your mind, then that’s ok too. Don’t be too proud to acknowledge the new information and how it affects your opinion. There is always a discord between theory and its practical application: the MCA is no different in this respect. However, the obstacles and challenges that we encounter are not insurmountable. By carefully applying our knowledge and inherent clinical skills, they are often easily overcome and can be turned from a potential stumbling block to the foundations of a solid assessment process that ensures the right outcome for the patient. Whilst I named this article, ‘Top 5 challenges faced by clinical staff in identifying capacity issues in their patients’, this is in fact just scratching the surface. I’ve not even touched upon the threshold of understanding or causative nexus, for example....
I’ll keep these back for another article sometime, or if you’re interested in finding out more for yourself or your teams, please do get in touch with me regarding our Mental Capacity Training, aimed specifically at healthcare professionals, which focuses on transferring the above theory into practice.