This is probably me just being a little pedantic. But I have an issue with being told people are “deemed” to have capacity. Even more so they are “deemed” to lack capacity I think it’s mainly due to the lack of precision in the term “deem”.
The dictionary definition of “deem” is “to have an opinion or believe” or to “consider or judge”. In this context, particularly, it seems to be used to cover a multitude of sins.
When it comes to capacity, there are a few different outcomes. It might be that P has been assessed as having capacity to make a decision, or that they have been assessed as lacking capacity to make a decision. Or that a person acted upon reasonable belief that the person lacked capacity in a situation where intervention was justified. It’s also possible that the person is being treated as having capacity because there was no reason at the time to believe they lacked capacity. These are all valid positions within the Mental Capacity Act 2005.
I’ve known “deemed to have capacity” to be used in situations when P has been assessed as having capacity, or when there was no reason to doubt capacity. There’s an important distinction between those two things though. And so when I read “deemed to lack capacity”, it just prompts further questions as to the basis of the opinion. If there was an assessment at the time, I’m going to want to see it.
Unfortunately, though, when I ask further questions, it often turns out that by “deeming that P has capacity” what the professional often means is “it was easier for me to say that than to consider the Mental Capacity Act, and now I’m justifying it”. And that is not a valid outcome or response within the legislation. But it does technically fall within the definition of the word “deem” I guess. Which is perhaps why so many professionals have decided to use this terminology.
Even more infuriating is deeming someone to lack capacity. Because, really, in the situations that I am dealing with (being rarely so urgent that a proportionate assessment can’t be completed) there’s only one appropriate way this should be interpreted: they’ve been assessed as lacking capacity. So why not just say that? If the answer to “can I have a copy of the capacity assessment?” isn’t “yes” then 9.5 times out of 10, something has gone wrong.
Perhaps someone thought it sounded more professional and impartial to use the word “deem”. I have had conversations before about professionals not liking to use the term “believe” in statements and preferring the term “consider”. The latter being less emotional and implying more evidence-based decision-making. The verb “feel” was particularly frowned upon as being even more emotional.
I suppose using “judge” would come across as a bit arrogant in a scenario where an actual judge is going to make a decision on the issue. I’m not sure why everyone is against precision though. It does not take much longer, surely, in the grand scheme of the hours involved in a Court of Protection case to check and say either “P was assessed as having capacity as per the attached capacity assessment” or “the professional at the time considered that no assessment of capacity was required on the basis that P appeared to be making a capacitated decision.” Some consideration about whether there was any behaviour indicating a possible lack of capacity would likely be valuable in explaining the situation at the time as well.
It’s maybe just a lawyer thing. We are trained to be particularly pedantic, especially around language. It may be that no one else is really dwelling on this but me. But every time I read it, I feel like there’s an itch in the back of my brain.
Perhaps I have just been doing this too long…
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation.