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August 2017

The Mental Capacity Act in Practice: Part 3 

Introduction 

This briefing is the third and final part of a series that aims to support practitioners to both meet statutory requirements and practice confidently when assessing mental capacity and making decisions using the Mental Capacity Act. 

The Mental Capacity Act in Practice: Part 1 provided a summary of the statutory principles of the Act (tri.x Briefing #209: The Mental Capacity Act in Practice: Part 1). 

Part 2 then summarised the key requirements of the Act when assessing mental capacity (tri.x Briefing #213: The Mental Capacity Act in Practice: Part 2). 

Using this briefing 

Building on Part 1 and Part 2, the final part of this briefing series explores some of the practicable steps that should be considered when carrying out Stage 2 of a mental capacity assessment (the functional test of capacity). 

There is a statutory requirement under section 42 of the Act that regard must be given to the Code of Practice when carrying out any function or decision under the Act. This is regardless of the existence of other guidance. 

The Code of Practice for the Mental Capacity Act 2005 can be accessed at https://www.gov.uk/
government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf. 

Stage 2 of the Mental Capacity Assessment 

Stage 2 of the mental capacity assessment requires the assessor to provide evidence that either supports or refutes a person’s ability to do one or more of the following things, set out in section 3 of the Mental Capacity Act as necessary to make a decision. 

These are: 

1. Understand information given to them;
2. Retain that information long enough to be able to make the decision;
3. Weigh up the information available to make the decision; and
4. Communicate their decision.  

The Statutory Requirement to take all Practicable Steps 

The 2nd statutory principle of the Mental Capacity Act sets out that: 

 ‘A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success’. 

You cannot therefore decide that a person lacks the ability to do any one of the 4 things in Stage 2 of the mental capacity assessment until you have taken all practicable steps to support them to do so. 

Defining a ‘Practicable Step’ 

Practicable steps are the things that it is ‘possible and appropriate’ for you to do in order to support the person to make a decision. 

The steps that are practicable will vary depending on the needs of the person and the urgency of presenting situation. 

Providing Information that is Relevant to the Decision 

Providing all of the information that is relevant to the decision is a practicable step that you can take to support the person’s understanding and ability to make a decision. 

The information that you provide should be sufficient to enable the person to: 

1. Understand what the decision is and why it needs to be made;
2. Understand the range of choices available to them;
3. Understand the likely consequence of making or not making a decision. 

When providing relevant information you should always consider: 

1. The amount of information (make sure that it is all relevant to the decision and the person);
2. The depth of information (try not to give more detail than the person needs);
3. The best way to provide the information;
4. The best time to provide the information;
5. The support or time that the person may need to understand the information. 

You do not have to provide all of the relevant information yourself. It may be more appropriate for someone else to provide the information, for example a health professional or a family member. 

Communicating in an Appropriate Way 

It is vital that you consider and take all practicable steps to ensure that: 

1. Information is communicated in the best way for the person; and
2. The person is supported to communicate information about their decision to you. 

To do this you must confirm: 

1. The person’s preferred method of communication;
2. Any support the person may need to communicate (for example from a carer, advocate or interpreter);
3. Whether the person’s communication abilities fluctuate; and
4. If they do fluctuate, when the best time to communicate with them may be. 

If it is not clear what the best way to communicate with the person is you must still be able to demonstrate that you have taken all practicable steps to communicate appropriately. 

This means you should: 

1. Not make any assumptions about the most appropriate way to communicate;
2. Consider whether a formal assessment of their communication needs by a Speech and Language Therapist is appropriate and possible (in regards to the needs of the person and the decision to be made); and
3. If not, explore a range of potentially appropriate communication methods to determine which is best. 

The range of potentially appropriate communication methods that you will need to explore will vary depending on the presenting needs of the person and the nature of the decision to be made, but could include things like: 

1. Using pictures, photographs or objects of reference to support verbal speech;
2. Simplifying terminology;
3. Breaking down information into smaller chunks;
4. Using computers and technology to communicate;
5. Using sign language or specialist communication, such as Makaton;
6. Slowing down speech, or adjusting tone or volume;
7. Sitting in various positions and experimenting with body language;
8. Allowing time for the person to digest something before providing more information;
9. Visiting relevant places to support the person to contextualise and visualise the information;
10. Repeating information;
11. Providing an interpreter; or
12. Providing an advocate.  

Location, Timing and the Presence of Others 

When a person is at ease they are better placed to think things through and make an informed decision. 

You must therefore take practicable steps to ensure that the person is supported to make the decision: 

1. In a place that they feel at ease;
2. At a time when they are best placed to make the decision; and
3. In the presence of people in whose company they feel at ease.  

Location 

Locations could include: 

1. The person’s home;
2. The home of a family member or friend;
3. A community building (for example, a church or a cafe);
4. A ‘relevant’ location (a location related to the decision e.g. a hospital or proposed care home); or
5. An office environment (for example, a social work office). 

You should never make an assumption about where the best location for a person may be, but you should consider: 

1. The level of distraction or interruptions;
2. The level of noise; and
3. The level of privacy offered by the location.  

Timing 

The person should, wherever possible be supported to make a decision when: 

1. They are most alert;
2. They are well;
3. They are not experiencing a fluctuation in their capacity; and
4. They have time to consider the information and make the decision. 

You must establish: 

1. If there is time of day when the person is least/most alert;
2. The amount of time that the person is likely to require to process the information and make the decision;
3. If the person is taking any medication, whether this affects their memory or concentration;
4. If the person is unwell, whether it would be better to wait until they are well;
5. If the person is experiencing a fluctuation in capacity, whether they are likely to be able to make a decision again in the foreseeable future. 

You should take steps to delay the decision if the timing is not right for the person and the need to make a decision is not urgent. 

If you have established that the person may become confused or overwhelmed by the information you need to provide you should: 

1. Limit the amount of information that you provide at any one time
2. Not rush;
3. Repeat information as required;
4. Allow time for the person to digest the information and ask any questions;
5. Factor in breaks; and
6. If possible, extend the timeframe for the decision to be made as required. 

If not clear which time of day is best for the person you should be prepared to try various times of day until you have established this. 

The presence of others 

Wherever possible the person should be supported to make a decision in the presence of those persons in whose company they feel at ease. 

The presence of others could either: 

1. Reduce the person’s anxiety and help them to think things through; or
2. Be intrusive and inhibit them from making a free choice. 

You should take steps to establish if there is anyone: 

1. Who the person wants to be present;
2. Who the person does not want to be present;
3. Who it would be beneficial to be part of the decision; and
4. If so, with the person’s consent involve them.  

Providing Independent Support 

Sometimes people will be more comfortable making a decision if they have the support of another person to do so. 

As such you should: 

1. Consider whether the support of another person would be beneficial to help the person make the decision; and
2. If so, consider whether there is anyone from within the person’s informal network who may be appropriate to support them (a friend, family member or carer); and
3. If so, take steps to arrange for them to do so; and
4. If not, consider whether the provision of an advocate is practicable (appropriate and possible); and
5. If so, make arrangements to provide the advocate subject to the person’s consent. 

 

 

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