The 2 stage-test – Process or target list?

When it comes to the assessment of mental capacity, I often see people referring to the ‘2 stage test’ as the process they follow.

In this blog I explore why the 2 stage test is not an assessment process, rather it’s a target list that we should use to inform our process.

What is the 2- stage test?

The 2 stage test (which, incidentally, I believe is really 3 stages) is the term that is commonly given to the framework that appears in Sections 2 and 3 of the Mental Capacity Act (2005).

The 2-stage test is set out thus in the latest guidance:- A person is unable to make a decision for himself if he is unable

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

d) to communicate his decision (whether by talking, using sign language or any other means).

For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of the mind or brain.-

It does not matter whether the impairment or disturbance is permanent or temporary.

Process or target list?

Now whilst the above ‘test’ is useful in so far it tells us the broad areas we are looking at it does not provide any clarity on how we actually do it or other key factors that we need to consider such as what information they need to be able to understand, how long a person needs to be able to retain information or what they need to be able to communicate.

As such, in my opinion it is nothing more than a checklist.

If we require assessments to be accurate, robust, replicable and defensible then we need a clear process that we can follow time and time again that will ensure we reach the same conclusions time and time again.

A 3-stage model of assessment

Over the many years I have been assessing I have developed a three-stage assessment process.

In this model we break the assessment down into three distinct stages, each with their own specific focus and aims. These stages are as follows:

1. Pre- assessment – during this stage we identify the specific decision to be assessed, set the threshold of understanding, create our support tools and create an initial question set. We also use this time to evaluate the evidence and review any third-party information we have been given.

2. Assessment – the foundation for this stage is set in what we have done in the pre-assessment stage. Using that preparatory work, we then use all our various different skills (Communication, clinical, empathy etc) to support the individual to help us to understand their decision-making processes -their ability to understand relevant information, retain that information, weigh it up and use it and communicate.

3. Post assessment – this is where we critically evaluate (1) our performance and outcomes during the assessment. Did we ask the right questions, did we get the information we needed, did we support the individual sufficiently? (2) the information provided by the client (3) the information provided by any third parties and (4) our outcomes.

   
   

Although, in your reports it is necessary to acknowledge that you have applied the principles of the 2 stage-test in your assessment, in reality, it is little more that a checklist for assessors to refer to.

In order to produce assessments that are accurate, robust, replicable and defensible assessors need a process that they can follow repeatedly that allows them to demonstrate each step of the assessment process and critically evaluate their own actions as well as the information gathered and the conclusions they draw.