The Mental Capacity Assessment That Came Too Late

The Assessment That Came Too Late

When an outdated view of capacity turns a straightforward decision into an avoidable problem

The following case study is fictional and has been created to illustrate issues that can arise in deputyship practice.

“Daniel” was 36 and had sustained a significant acquired brain injury several years earlier.

Following his injury, the Court of Protection appointed a professional deputy to manage his property and financial affairs. His file contained a Mental Capacity Assessment completed some years previously which concluded that Daniel lacked capacity to manage his financial affairs.

For several years, that appeared sufficient.

His deputy managed his compensation, paid his bills, arranged funding for care and rehabilitation and worked alongside Daniel's case manager and wider professional team.

Then Daniel's circumstances changed.

His rented accommodation was no longer suitable. His mobility needs had increased, adaptations were limited and the property could not easily accommodate the equipment and support he was beginning to require.

The multidisciplinary team agreed that purchasing and adapting a property could significantly improve Daniel's independence and quality of life.

A suitable property was eventually identified.

It was accessible, close to Daniel's family and had sufficient space to accommodate his anticipated future care needs.

Daniel loved it.

The offer was accepted.

And that was when a seemingly straightforward purchase became much more complicated.

“But we already know he lacks capacity”

As the purchase progressed, questions arose about Daniel's involvement in the decision.

Daniel was expressing strong views about where he wanted to live. He understood that a property was being purchased for him and could describe some of the reasons he preferred this particular house.

Someone asked a very important question:

Did Daniel have capacity to make this specific decision himself?

The answer was assumed to be no.

After all, there was already an assessment confirming that he lacked capacity to manage his property and financial affairs.

But that wasn't necessarily the question that now needed answering.

Under the Mental Capacity Act 2005, capacity is considered in relation to the particular matter at the relevant time. A person must also be presumed to have capacity unless it is established otherwise, and practicable steps should be taken to support them to make the decision before concluding that they cannot.

The existing assessment was several years old.

More importantly, it had considered Daniel's ability to manage his financial affairs generally. It had not been designed to assess his capacity in relation to the particular decision now facing him.

Could Daniel understand the relevant information about purchasing this property?

Could he retain that information for long enough to make the decision?

Could he use or weigh the advantages, disadvantages and alternatives?

Could he communicate his decision?

Those questions had not been answered.

And suddenly, time mattered

By the time the issue was identified, the purchase was already progressing.

Professionals were working to deadlines. The seller wanted certainty. Adaptation plans were being considered and Daniel believed he would shortly be moving into his new home.

A fresh Mental Capacity Assessment was now required urgently.

Finding an appropriately experienced assessor, providing the relevant documents, identifying exactly which decision needed to be assessed and allowing sufficient time to support Daniel properly through the assessment all had to happen against a rapidly approaching deadline.

The difficulty wasn't that somebody had failed to obtain any capacity evidence.

There was capacity evidence.

It simply wasn't the evidence needed for this decision, at this time.

That distinction matters.

Government guidance for deputies specifically states that a deputy must consider the person's level of capacity every time they make a decision and should not assume that capacity is the same at all times or for every type of decision.

The consequences of leaving it late

In our fictional case, the transaction stalled.

Additional professional time was required.

The seller became nervous.

Daniel became increasingly distressed because he had been told about a home he now believed might be taken away from him.

His family questioned why the issue had not been considered sooner.

The deputy was placed under pressure to resolve a question which, had it been identified several weeks earlier, could have been addressed in a planned and proportionate way.

None of this meant the original assessment had been poor.

The problem was that a previous answer had inadvertently been applied to a new question.

That is an important distinction for anyone working with people who may lack capacity.

What happened when Daniel was assessed?

Once the referral was properly defined, the assessor spent time understanding Daniel's communication and cognitive needs and identifying the information genuinely relevant to the decision.

Information was broken down and presented in a way Daniel could engage with.

He was given time.

The assessor explored his understanding of the property, its cost, the alternatives available to him and the implications of purchasing it.

Interestingly, the result was more nuanced than some members of the professional team had anticipated.

Daniel continued to lack capacity to make the complex financial decision relating to the property purchase.

However, he understood considerably more about the decision than had initially been assumed.

He could express clear and consistent wishes about where he wanted to live, the importance of being close to his family, the type of environment in which he felt comfortable and what he wanted his future home to enable him to do.

Those wishes did not disappear simply because he lacked capacity to make the ultimate decision.

Where a person lacks capacity, decisions made on their behalf must be made in their best interests, and the Mental Capacity Act requires consideration of the person's wishes, feelings, beliefs and values as part of that process.

Daniel's assessment therefore did far more than produce a conclusion of capacity or lack of capacity.

It provided evidence that helped the people around him understand both the limits of his decision-making ability and the extent to which he could meaningfully participate in the decision.

That information was then available to inform the subsequent best-interests process.

The real lesson: ask the capacity question earlier

For deputies managing busy and complex caseloads, it is understandable that capacity can sometimes be considered only when a specific piece of evidence is requested.

But major decisions rarely arrive without warning.

A property purchase.

A proposed move.

A significant change to a care package.

A substantial financial decision.

A disagreement between professionals or family members.

Each should prompt an early question:

Do we have current, decision-specific evidence about this person's capacity to make the decision that is approaching?

If the answer is unclear, obtaining advice or arranging an assessment early may prevent a capacity question becoming an emergency later.

It also creates something arguably even more important: enough time to support the person properly.

The Mental Capacity Act does not permit us simply to conclude that someone cannot decide. All practicable steps must first be taken to help the person make the decision, and an apparently unwise decision is not, by itself, evidence that they lack capacity.

That is much easier to achieve when an assessment is planned than when everyone is working against a deadline.

A Mental Capacity Assessment shouldn't just tick a box

At Circle Case Management, our Mental Capacity Assessment team understands that behind every referral is a real person and, very often, a much bigger decision.

Our experienced MCA professionals work with deputies, solicitors, case managers, families and wider multidisciplinary teams to provide independent, decision-specific assessments across England and Wales.

The aim is not simply to produce a report stating whether somebody does or does not have capacity.

A high-quality assessment should make the reasoning clear.

It should demonstrate how the individual was supported to participate, identify the information relevant to the particular decision and provide professionals with evidence they can actually use.

Circle's wider experience across case management, social work and complex injury also means our team is accustomed to working with individuals whose circumstances may involve acquired brain injury, neurological conditions, learning disabilities, communication difficulties and complex care or rehabilitation needs.

Most importantly, we encourage professionals to involve the MCA team before the question becomes urgent.

Because sometimes the most expensive capacity assessment isn't the one you commission.

It's the one you realise you needed three weeks ago, whilst losing time.

Circle Case Management – Mental Capacity Assessments

Circle Case Management provides independent Mental Capacity Assessments across England and Wales, working alongside professional deputies, solicitors, case managers, families and multidisciplinary teams.

If you have an upcoming decision and are unsure whether existing capacity evidence addresses the right question, our MCA team can discuss the referral and help identify the decision that requires assessment.

Email MCA@circlecm.com Call: 0129724145 Visit: www.circlecasremanagement.com

Circle Case Management
Small enough to care, large enough to cope.