Spot the difference: The need for precision in capacity assessments

I wrote previously about the importance of evidence and not making assumptions here. It’s something I have been thinking about again, in the context of some work I was involved with over the last few weeks.

Because I was involved with 2 cases with very different facts, but raising a central issue around assessing capacity and complying with the Mental Capacity Act 2005.

P is in his early 20s, he has learning difficulties and autism and lives with his parents. His dad is overbearing, often answering questions for P and preventing P have free access to services. P has declined social care and education support, but there are questions around whether P has capacity to make decisions about his education and care.

Q is in her 50s, and has depression and shows some evidence of a personality disorder that has not been fully explored. She lives at home with her son. Both are recreational drug users, and they prevent services having access to the property and fully assessing Q’s capacity and her needs.

In both cases, safeguarding concerns have been raised, and court of protection proceedings brought. In each, there are 3 possible outcomes:

1) the individual has capacity, and is making a decision that the social worker considers unwise.

2) the individual lacks capacity because they don’t understand the relevant information including the risks of their decisions and the potential other options available to them.

3) the individual is under undue influence of a family member, and so is not making a free and truly capacious decision.

So it is capacity evidence time, and that means breaking down the elements of the test. I think it will help if we compare the approaches taken by the 2 assessing professionals.

Let’s start with P. P was assessed by a social worker initially. She said she didn’t think P understood the benefit to him of accessing education and social care support but couldn’t say if this was due to his impairment of the brain or mind or due to his age. We all make silly decisions in our early 20s after all.

So P was then assessed by a consultant psychiatrist, who prepared a detailed report and set out that in her view, P did not have capacity to make decisions about his education and care. In reaching this conclusion, she put significant weight on the fact that as a result of his autism, P had difficulty in any situation where demands were placed upon him, and he could not process abstract concepts. She wrote in great length about his inability, as a result of his autism, to transfer learning from one setting to another. Therefore, although he had made progress at school previously and had been able to manage his anxiety with support whilst there, he could not understand that he might also be able to make progress, with support, at college or through other supported activities. Whilst P’s father did appear to be overbearing, and P did seem to repeat phrases his father had used when answering questions, the psychiatrist considered that this might be an additional difficulty for P when making decisions, the cognitive difficulties he had, as a result of his autism wete causing P to be unable to understand and use and weigh the relevant information relevant to the decision at hand, not the behaviour of his father.

The report was, of course, much more lengthy than that brief summary, but you get the gist.

Q has also been assessed by her social worker. Her social worker is very concerned about her welfare at home, and writes both a capacity assessment and a statement to the court which contain the statement: Q clearly lacks capacity because she is making unwise decisions as a result of undue influence by her son.

Let that sink in for a moment…

Now again, there is more in the evidence than just that. The social worker did explain the risks of drug use to her, and she said she didn’t care. He told her she could have care and support but her son was stopping it, and she said she didn’t want the care. But that is pretty much all the evidence the social worker gave.

Can you spot the difference?

Firstly, I am not suggesting that the writer of the evidence is the reason for the difference. I have seen plenty of bad reports by doctors and good ones by social workers. The difference isn’t, as far as I can see, related to any specific training, but rather an understanding of evidence based decision-making and how to articulate that. Q’s social worker is experienced, but seemed to be under the illusion that once he’d referred it to legal, it was for the judge to decide. That is partially true, but did forget the bit about the judge needing evidence, and that if the social worker wasn’t clear in his evidence either he’d be called to give oral evidence, or the Council will be ordered to pay for an expensive independent expert.

But what really worried me was that the social worker seemed to be missing the crucial point that the court can’t do anything until it has evidence of a reason to believe that Q lacks capacity. The court can’t even make interim orders until it has that evidence. And with the only evidence available showing a disregard for the principles of the Mental Capacity Act 2005, if I was a judge, I wouldn’t be convinced.

Because if the social worker is suggesting that the only evidence of incapacity is that she is making decisions he doesn’t agree with, well, that isn’t very convincing at all. And as for undue influence, well that isn’t an issue for the Court of Protection. If that is the issue, this application needs to be dealt with by the high court under its inherent jurisdiction.

And when it is difficult to decide what is happening, then it is all the more important that the evidence before the court sets out the test for capacity in detail. And that means going through the Mental Capacity Act in detail, starting with identifying the relevant decisions to be made, and then the steps you have taken to support the person to make their own decisions. It will be necessary to set out what the information relevant to the decision is, and then which aspects of this information the person can’t understand, retain, use or weigh. And not forgetting the causative nexus, taking into account the possibility that other factors might be affecting cognitive processes. The the reasons for the conclusions that have been drawn, so that your evidence is convincing and useful.

I like to think Q’s social worker does understand this, just hasn’t articulated their thought process at all clearly. But that has made it rather difficult for us to know which way to progress with Q’s case. Whereas with P, we can move forward without that uncertainty.

It’s all in the professional rationale.

And before anyone asks, yes Q’s case has been referred to the court of protection. The application was made because one of the new members of the team didn’t see the same issue that I did, and we’re trying to rectify that before we have a hearing. As I’ve mentioned, I’m training them up, and now we have a mistake to learn from.

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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