The purpose of this blog is to provide for social workers and those working in front-line clinical settings an overview of the law and principles relating to the assessment of capacity under the Assisted Decision-Making (Capacity) Act 2015. Its focus is on how to apply the guiding principles when assessing capacity, primarily in the context of health and welfare decisions (see my previous blog on the Guiding Principles).
The presumption that a relevant person has capacity is fundamental to the Act. It is important to remember that the person has to ‘prove’ nothing. The burden of proving a lack of capacity to take a specific decision (or decisions) always lies upon the person who considers that it may be necessary to take a decision on their behalf (or will invite a court to take such a decision). The standard of proof which must be achieved is on the balance of probabilities. Accordingly, it will always be for the person alleging incapacity to prove that it is more likely than not that the person lacks capacity. Precisely how the presumption plays out has yet to be seen and interestingly the Act is silent on who exactly should access capacity.
Nevertheless, it is important to understand that it is not only medical professionals – and in particular psychiatrists – who can carry out a capacity assessment. There will be some circumstances under which a medical professional’s particular expertise will be required, but that is because of their expertise, not because of the position they hold. A capacity assessment is, in many ways, an attempt to have a real conversation with the person on their own terms, and applying their own value system. It is frequently the case that professionals or others who know the person better, and in particular who have seen the person over time, will be able to do a more robust capacity assessment than a person (of whatever discipline) ‘parachuted’ in for a snapshot assessment. But before having the capacity conversation with the person, it is most important to do your homework and consider what we might call the circumstantial evidence. In other words, ensure you are familiar with the personal circumstances, incidents where risks have materialized and so on.
The law gives a very specific definition of what it means to lack capacity for purposes of the Act. It is a legal test, and not a medical test, and to apply the test the Act sets out how a relevant person’s capacity is to be assessed and provides that a person lacks the capacity to make a decision if he or she is unable: –
a) To understand information relevant to the decision,
b) To retain that information long enough to make a voluntary choice
c) To use or weigh the information as part of the process of making the decision, or
d) To communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decisions requires the Act of the third party, to communicate by any means with that third party
The assessment is, therefore based on the person’s inability to make a decision. However, this assessment is both issue-specific and time-specific, more particularly a person’s capacity shall be assessed on the basis of his or her ability to understand the nature and consequence of a decision to be made by him or her in the context of the available choices at the time the decision is made.
It is important to remember that an extremely foolish or irrational decision is still a decision and one that a person is entitled to make if they have the capacity to make it. An action can only be taken if the person is, in fact, unable to take the decision in question due to mental incapacity. Finally, it is possible to overcomplicate capacity assessments. Especially in the context of those with learning disability and dementia, the key to a successful assessment is patience and empathy. Those are not skills that are the province of particular professionals, but they can be taught and need to be nurtured in settings. It is understood that the assessment of capacity to take complex decisions necessarily takes time.
Capacity law should respect every person’s independence, dignity and freedom to make their own choices in line with their right to self-determination.