Assessment of Capacity: Principles of the Mental Capacity Act

The purpose of the Mental Capacity Act is to protect and empower people who may lack capacity. There are two stages to assessing capacity, firstly; is the individual unable to make a particular decision and, is the inability to make that decision caused by an impairment of, or disturbance in the functioning of a person’s mind or brain? Is that impairment or disturbance sufficient that the person lacks the capacity to make a decision? Capacity can be partial or temporary.

There is also a functional test which focuses on how a decision is made, retained, weighed-up or communicated. Capacity is time and decision specific which means an assessment needs to be undertaken at the time the specific decision needs to be made.

Five Principles of Mental Capacity Act 2005

The five key principles of the MCA are; 

1. Presumption of capacity.
2. Support to make a decision.
3. Ability to make unwise decisions.
4. Best interest.
5. Least restrictive.

The first three principles will support the process before or at the time of determining whether someone lacks capacity, principles four and five should then be used to support the decision-making process.

AMDC v AG & Anor [2020] EWCOP 58

In the recent decision in AMDC v AG & Anor [2020] EWCOP 58 the Court was asked to consider P’s capacity to make various specific decisions including those related to; her residence, care and support, marriage, divorce and engaging in sexual relations.

In this case, the parties had jointly instructed an expert to provide a report on P’s capacity.  Three separate reports were provided over the course of nearly a year, but none were considered to be satisfactory by the Court or the parties, to enable a final decision to be made, with some of the conclusions relating to capacity, changing without adequate explanation, between assessments.

• Pending reaching a final determination on the matter, the Court made various interim orders and directions, which had the effect of depriving P of her liberty and interfered with her personal freedoms, such as her ability to engage in sexual relationships or making adjustments to her care arrangements, amongst others. The parties and the COP agreed to commission a further expert report, which ultimately concluded that P lacked the requisite capacity to make any of the decisions under consideration.

Despite the Court not being able to make a final decision immediately and requiring significant updated evidence, it concluded that this was not a case in which the application should simply be dismissed. Instead, the judge said that “the evidence as a whole established that there was reason to believe that P lacks capacity to make the decisions under consideration and that it was in her [P’s] best interests to make interim orders and directions” pending the final determination of the matter(s) before the Court.

Guidance

The judge then went on to set out some very helpful guidance at paragraph 28 (set out below) which he said, “might be of assistance to all assessors”.

28. When providing written reports to the court on P’s capacity, it will benefit the court if the expert bears in mind the following:

(a) An expert report on capacity is not a clinical assessment but should seek to assist the court to determine certain identified issues. The expert should therefore pay close regard to (i) the terms of the Mental Capacity Act and Code of Practice, and (ii) the letter of instruction.

(b) The letter of instruction should, as it did in this case, identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide. It will assist the court if the expert structures their report accordingly. If an expert witness is unsure what decisions they are being asked to consider, what the relevant information is in respect to those decisions, or any other matter relevant to the making of their report, they should ask for clarification.

(c) It is important that the parties and the court can see from their reports that the expert has understood and applied the presumption of capacity and the other fundamental principles set out at section 1 of the MCA 2005.

(d) In cases where the expert assesses capacity in relation to more than one decision,

(i) broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision.

(ii) experts should ensure that their opinions in relation to each decision are consistent and coherent.

(e) An expert report should not only state the expert’s opinions, but also explain the basis of each opinion. The court is unlikely to give weight to an opinion unless it knows on what evidence it was based, and what reasoning led to it being formed.

(f) If an expert changes their opinion on capacity following re-assessment or otherwise, they ought to provide a full explanation of why their conclusion has changed.

(g) The interview with P need not be fully transcribed in the body of the report (although it might be provided in an appendix), but if the expert relies on a particular exchange or something said by P during interview, then at least an account of what was said should be included.

(h) If on assessment P does not engage with the expert, then the expert is not required mechanically to ask P about each and every piece of relevant information if to do so would be obviously futile or even aggravating. However, the report should record what attempts were made to assist P to engage and what alternative strategies were used. If an expert hit a “brick wall” with P then they might want to liaise with others to formulate alternative strategies to engage P. The expert might consider what further bespoke education or support can be given to P to promote P’s capacity or P’s engagement in the decisions which may have to be taken on their behalf. Failure to take steps to assist P to engage and to support her in her decision-making would be contrary to the fundamental principles of the Mental Capacity Act 2005 ss 1(3) and 3(2).

Conclusion

The case is a reminder of how thorough and clear instructions to experts, need to be and that reports on capacity must follow the legal framework under the MCA, to ensure that they can support Judges and the COP engaged in assessing whether P lacks capacity to make various decision in their best interests.

Instructions to experts need to be clear and concise, setting out the specific decision to be made and include any relevant case law or guidance and the statutory framework. In turn the report provided to the Court should explain how any decision made has been reached, having regard to the statutory framework.