A few months ago I attended a very helpful conference on the Mental Capacity Act 2005 arranged by Switalskis solicitors. Its an annual event, but it was the first time I managed to persuade my employers to pay for some tickets. Amongst the many illuminating talks I attended, the one that stuck with me the most was led by Professor Wayne Martin from Essex University and discussed the difference between lacking insight and lacking capacity.
Essentially, what he invited us to do was apply the principles of logic to capacity assessments. This can, obviously, apply to all evidence we consider as we go about our roles as care and legal professionals. For me, it highlighted a very important question that we don’t always ask ourselves enough, namely: does my conclusion logically follow from the evidence available.
I will take, by way of illustration Professor Martin’s example, because it works as well as any other:
It does not logically follow that because P lacks insight, they lack capacity. But it might follow that because P lacks insight into the risks of not taking their medication, they lack capacity to make decisions about their medication.
This underpins the core principles of the Mental Capacity Act 2005, especially the concept that capacity is decision-specific. The sentence does not end ‘P lacks capacity’. P lacks capacity to make certain decisions, and probably retains it for many others. I have developed something of a reflex whenever I hear “P lacks capacity”, where my response is “to make what decision?”.
Because assumptions can be very dangerous. For example, I read a capacity assessment recently that concluded P lacked capacity to make decisions about his care and residence because he had said he could undertake various activities of daily living himself. The doctor assumed that he couldn’t, and based their conclusions on that. But there isn’t actually any evidence that P can’t undertake these tasks, and if he can, then that puts a whole different spin on the situation, doesn’t it?
I am reminded of another case where assumptions have created an issue. These pervade through both the capacity and best interests evidence at present. In summary, it concerns a man with a dementia who is saying, repeatedly and consistently, that he wants to live back in a specific town. This is the town he grew up in, where he worked, owned a house and raised his family. His family are of the view that he does not mean he wants to live in that town, they consider he wants to live only back in the family home and will be no happier in a care home in that town, so a move is not worthwhile. Because going back home is not an available option. P, however, doesn’t know that going home isn’t an option. Which means we can’t know what he means by his repeated statements of his wishes, which does somewhat draw capacity and best interests evidence in to question.
(I would stress here that the assumption has been brought to light by the very diligent professionals involved currently, and is now being addressed through further evidence.)
Do you see what I mean here? And how big the ramifications can be, from something that occurs, largely, because of time and workload pressures.
Well just in case, let’s look at a few more:
- I read time and time again that there are no alternative options, but is that true? And even if it is, where’s your evidence to support that statement? Where have you looked? Are there options that professionals won’t endorse? Going home without a support package is an option, just one that professionals may not recommend. But if that is the case, then reasons will need to be given.
- Likewise, it is often argued that a move will mean more family contact, but here is the kicker: just because they will be closer to their family doesn’t actually mean they will visit more. So before the conclusion is drawn, it is usually necessary to have a conversation with the family members in question.
- And don’t even get me started on statements about risks: talking about whether risks can or cannot be managed without setting out how or why is something of a red flag to a bull…
Most of the time, whoever is writing the report (or statement or assessment or whatever) is thinking about their evidence and reasoning, it just isn’t articulated very clearly. So then someone (like me) comes along and reads it, and can’t understand how we have got from A to B. Then follows further questions, and a further report and we all get to play a game of ping pong whilst getting slowly more annoyed at each other.
And for the record, “I am [insert professional qualification here] and I say so” really isn’t the masterstroke some professionals think it is.
It is not always the case that law and logic are working together, but sometimes applying logical principles to the work we are doing will actually be beneficial for everyone.
In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority
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