The 3 most common mistakes made with mental capacity assessments

I often get asked by either the courts or legal professionals to review and comment on other assessors’ capacity assessments. Here are the three most common errors that I see. 

1. Not considering the type of decision 

   
   

What I mean by this is not that they don’t clearly identify the specific decision to be addressed (although that does happen a lot!) but identifying whether it is a ‘Macro’ or ‘Micro’ decision. Understanding the difference between the two and determining which applies is vital to understanding the length of the time a person needs to be able to understand, retain, weigh and use the relevant information as well as how we apply the relevant information. 

For example, I was recently involved in a case whereby the lady in question had a history of over 20 years of psychotic ideation and impaired memory that directly affected the type of care she would engage with (her belief being certain medics were trying to kill her), her understanding of her care needs (she could not recall the help she received, meetings she had attended etc) as well as her ability to be able to manage her care herself. The care home were of the opinion that if she left the home unattended she would not be able to find her way home due to her poor recall. 

However, she had the ability to ‘hold things together’ for about 30 minutes and each time she was assessed by the local authority, she told them what they needed to hear – even though it was in direct conflict with the actuality of her actions.  

The assessors failed consider that health and welfare is a Macro or on-going decision (see my blog here for more detail) and that they should not just consider how the person presents at the time of assessment but rather how they present over the longer period of time. 

2. Not digging deeply enough 

   
   

I think that this is something that every new assessor is guilty of, and learning how to dig deeper is something that only comes with experience. I should note that when I say ‘new assessor’ I am not talking about newly qualified staff but am referring to those that have just started their journey as expert witnesses and mental capacity assessors. 

Time and time again I see phrases such as “Problems can come up in any situation, it is how you deal with them, I know the risks”  being interpreted by assessors as ‘P’ having being able to understand, retain, weigh and use relevant risks associated with a decision – without actually asking ‘P’ what the risks are or how they think the risks actually affect them. 

To me such phrases are the launching pad for the discussion and deep dive, rather than the final destination/ outcome. 

3. Not linking their conclusions to the threshold of understanding 

   
   

Writing reports can sometimes be a long an arduous process. You’ve spent hours writing the main body of the report and it can be tempting to rush the conclusion, thinking you’ve already explored it all in the main body of the report.

But this is where so many reports fall down. 

What is an obvious conclusion to you is not always obvious to others and often requires you the assessor to walk the reader through their thought processes (including why you do or don’t think something is relevant). 

Key to this is often referring directly back to the threshold of understanding and explaining why you think each element is, or is not met – after all, this is where the challenges to the report are likely to stem from. 

The assessment of mental capacity is complex and there are often many different factors that need to be considered. However, by making the above mistakes, assessors are making a difficult job even more difficult for themselves. The result of this is that wrong outcomes are arrived at and the impact on the individual being assessed can be life changing. 

All of the above mistakes can easily be rectified if you know what you are looking for. My advice to all assessors would be to find a mentor, someone you can share your reports with (obviously with all identifiable info removed) and get constructive feedback. 

None of us are perfect but whether we choose to improve is up to us.