Adults with incapacity: guide to assessing capacity

Chapter 1: Introduction

Why has this guide been produced?

1 This guide has been produced to support professionals in assessing the capacity of individuals who may come under protection of the Adults with Incapacity (Scotland) Act 2000. The need for a practical guide was identified by an advisory group of lead officers from within local authorities which was set up to review the Code of Practice for Local Authorities Exercising Functions under the Act ¹. The group felt that practitioners involved in conducting community care assessments would be helped by having more detailed guidance on communication and assessment of capacity than the code provides. The guide also reflects the need for a greater recognition that the quality of communication and the appropriateness of methods used to enable understanding, underpin the assessment of a person's capacity to make decisions. A working draft was circulated for comment to a wide range of interests and received an extremely positive response. However, it is not to be regarded as the 'definitive' guide - we are all on a 'learning curve' in this area - nationally and in the wider world - and for this reason it is available only on the website and will be subject to change as our experience and knowledge grows.

The Scottish Government is committed to ensuring that the human rights of people with impaired decision-making capacity are upheld and it is hoped that this guide will help practitioners in their efforts to achieve this important aim.

Who is this guide for?

2 This guide is primarily for social work and health care staff in Scotland, including:

• care managers and other health and social care staff involved in carrying out community care assessments where the person appears to have difficulties in making decisions or acting in their own interests due to a mental disorder or a severe communication difficulty caused by a physical condition;
• health and social care staff, including clinical psychologists, involved in the capacity assessment process where a formal intervention under the Adults with Incapacity Act is being applied for;
• medical practitioners involved in both the early stage of a multi-disciplinary assessment process and/or where a formal assessment of capacity is needed because an intervention under the Act is being proposed. Doctors have principal responsibility for the formal assessment of capacity - in relation money management under Part 3 (Access to Funds) and financial and/or personal welfare decision-making under Part 6 (intervention orders and guardianship). However the importance of multi-disciplinary assessment is stressed here and in the codes of practice.

This guide does not cover the assessment of capacity in relation to medical treatment decisions or consent to medical research (see the 2000 Act Part 5 Code of Practice). However some references on this topic are included in Appendix 3.

For further information about the 2000 Act visit the Scottish Government's website: www.scotland.gov.uk/justice/incapacity .

Background

3 Capacity is the ability to understand information relevant to a decision or action and to appreciate the reasonably foreseeable consequences of taking or not taking that action or decision. The Adults with Incapacity (Scotland) Act 2000 was introduced to protect individuals (aged 16 and over) who lack capacity to make some or all decisions for themselves and to support their families and carers in managing and safeguarding the individual's welfare and finances.

The Act covers people whose incapacity is caused by a mental disorder such as dementia, learning disability, acquired brain injury, severe mental illness or personality disorder. It also covers people who are unable to communicate due to a physical condition such as a severe stroke or sensory impairment. A diagnosis of any of these conditions does not mean that the decision-making capacity of the person is impaired. There are, for example, many people with dementia or learning disabilities who are capable of making all or nearly all decisions for themselves. However, if someone with a mental disorder appears to be struggling to make or act on financial, welfare or healthcare decisions, the possibility of some incapacity should at least be considered.

The need for help and support does not automatically mean that the person cannot make the decision or decisions in hand. In accordance with the key mandatory principle of the Act, every effort must be made to support the person in communicating his/her views and feelings. No one else can act or make decisions for someone who is capable of doing so for his/herself.

The presumption of capacity

4 The starting point for assessing someone's capacity to make a particular decision is always the assumption that the individual has capacity. In legal proceedings the burden of proof will fall on the person who asserts that capacity is lacking. A court must be satisfied that on the balance of probabilities, capacity has been shown to be lacking.

'There is no all-purpose test for incapacity. The test depends on the decision to be taken… or task to be done. The principles of least restrictive alternatives and maximising the person's capacity underline the importance of not making blanket assessments of incapacity and recognising any residual capacity an adult has'.
Hilary Patrick ²

The 2000 Act was designed to promote personal autonomy, as well as protect adults who lack capacity to make some or all decisions for themselves. These values are fundamental to our society and therefore for all citizens unless they need protection. This guideline emphasises the crucial relationship between the ability of the professional to find appropriate ways of communicating with the person and the assessment of capacity to make the decision in hand. The challenge is to find ways to help the person to understand what decision or decisions need to be made and why - and to support him/her to reach his/her own decision as far as possible. When an assessment of capacity is undertaken, the fundamental issue under consideration is the person's ability to decide.

A person is not to be treated as unable to make a decision merely because he/she makes an eccentric/unusual or unwise decision.

5 Presented with similar circumstances many of us will make different decisions because we give greater weight to some factors rather than others. Factors influencing our decisions will be our own values, preferences and previous experiences. Some people are keener to express their own individuality or more willing to take risks than others.

However, there may be cause for concern if an individual repeatedly makes unwise decisions and place him/her at significant risk of harm or serious exploitation. Concern may be triggered if a person makes a particular decision which defies all notions of rationality and/or is markedly out of character. In these situations it would be relevant to look at the person's past decisions and choices. While such situations should not automatically lead to the conclusion that capacity is lacking, they might raise doubts about capacity and indicate the need for further investigation.

Impaired capacity

6 In order to decide whether an individual has capacity to make a particular decision you need to consider:

• does the person have a mental disorder (which includes mental illness, learning disability, dementia and acquired brain injury), or severe communication difficulty because of a physical disability (such as stroke or severe sensory impairment)? If so,
• has it made the person unable to make the decision or decisions in hand?

For the purposes of the 2000 Act a person is unable to make a decision for him/herself if, due to mental disorder or inability to communicate because of physical disability, he/she is incapable of

- acting; or
- making decision; or
- communicating decisions; or
- understanding decisions; or
- retaining the memory of decisions.

The Act does not explain how to assess capacity, but any one of the above elements may be critical depending on the decision in hand. The next section looks at the implications for practice of each of the above criteria or 'tests'. For further detailed discussion see ward ³.

Applying the criteria

Understanding the information relevant to the decision

7 First, you need to be clear about the decision or decisions to be made and what the options may be. The next step is to consider carefully how best to put across relevant information for the person concerned. Such information will include:

• the action or decision needed;
• why the action/decision is needed;
• the likely effects of making the decision;
• the likely effects of not making the decision; and
• any other choices or options open to the person.

How information is given will affect the ability of the individual to understand. Use broad terms and simple language (or other method appropriate to the person) to explain the proposed action or decision. It will not always be necessary to explain everything in great detail.

What do we mean by 'understand'?

8 There are two strands to 'understanding'

• there is having a grasp of the facts; and
• the ability to weigh up the options and foresee the different outcomes or possible consequences of one choice rather than another.

Factual knowledge base

9 The key here is the individual's awareness of his/her personal and financial circumstances. For personal care this would mean probing the person's knowledge of his/her living arrangements, safety and health care needs. For financial assessments, questions will be about the person's understanding of his/her assets, outgoing expenses and financial obligations.

For example:
someone with mild dementia may remember the name of his/her bank and approximate savings but could easily be confused by discussion around various options for safeguarding his/her assets against the effects of forgetfulness.

It will be important to know whether the person has the information needed to make a specific decision.

Understanding the options - use and weigh up the information as part of making the decision - being able to act on the decision.

For example:
an elderly widow may never have had to deal with money matters because her husband did everything. The person must be given the necessary information in as simple a manner as possible and helped to understand it before assessing her capacity to manage. It may be that the widow will learn to manage with support.

10 Faced with choices, a person should be able to understand and weigh up information about options and any risks involved - and act on the decision made. You should be aware that in certain cases, an adult may be able to understand the information, but unable to act on it because of the effect of his/her mental or physical impairment.

Unable to communicate the decision (whether by talking, using sign language or any other means)

For example:
certain types of disorders, e.g. severe acquired brain injury, cause people who are able to understand and absorb information, to act impulsively, regardless of the information available and their understanding of it.

11 The 2000 Act includes people with impaired decision-making capacity due to severe communications difficulties caused by a physical condition such as a stroke or sensory impairment. It could also apply to someone who is unconscious following an accident.

Before concluding that someone is totally unable to communicate and therefore lacks capacity, strenuous efforts must first be made to assist and facilitate communication. It is very likely that in such cases that the specialist skills of a speech and language therapist will be required. Communication by simple muscle movements, such as blinking an eye or squeezing a hand to indicate 'yes' or 'no' may be sufficient to indicate that the person has some capacity. Whether it is possible to probe understanding and level of understanding will depend on a number of factors. In some situations a psychological assessment to test complexity of reasoning may be required.

Retain the information relevant to the decision

12 The person may be able to understand their circumstances and able to make a decision but not able to remember all relevant information due to short-term memory loss. This should not automatically mean that the person is incapable of making the decision in hand. Aids such as videos and voice recorders could be used to support the person's memory, and record his/her responses. You may need to talk with the person several times to go over the information and to see if his/her response is consistent (even if the person cannot remember having been asked before). If the person's response is consistent then this may be taken as a signal that he/she has sufficient capacity to understand the decision in hand.