Morning Gopi
Unfortunately i have come across multiple situations like yours where care providers are asked to assess a persons capacity for day-to-day decisions (by CQC, the LA, ICB etc) when the carers and the provider believe the person is able to make the relevant decision, with all practicable support… Nowhere in the Act or the Code does it say that we need to assess a persons capacity merely for the fact that they have a mental impairment, in fact to do so merely on that basis of an impairment/disturbance could be seen as discriminatory… I hope the following passages/guidance helps.
Step 1 - CQC Regulation 11(1) Care and treatment of service users must only be provided with the consent of the relevant person… So, should you believe the person is able to consent, with all practicable support, with the support outlined in their care plan for personal care, support with the management and administration of medication, eating and drinking support etc, then as long as you have recorded the persons informed consent for that support then NO capacity assessment should be completed (unless maybe if there was a valid challenge to that conclusion). Just because a person needs prompts and reminders is not evidence of a lack of capacity to consent to day-to-day support (otherwise my partner may be concluding that I lack capacity)!
Step 2 When should we assess a persons capacity for the relevant decision? I personally have always like the way that the 39 Essex Chambers (Mental Capacity Guidance Note: Assessment and Recording of Capacity | 39 Essex Chambers) explains this point “[…] the very act of deciding to carry out a capacity assessment is not, itself, neutral, and the assessment process can, itself, often be (and be seen to be) intrusive. So, you must always have grounds to consider that one is necessary.
… you must also be prepared to justify a decision not to carry out an assessment where, on its face, there appeared to be a reason to consider that the person could not take the relevant decision:
- Whilst the presumption of capacity is a foundational principle, you should not hide behind it to avoid responsibility for a vulnerable individual…
- … the more serious the issue, the more one should document the risks that have been discussed with P and the reasons why it is considered that P is able and willing to take those risks.
The MCA Code of Practice states: 4.35 There are a number of reasons why people may question a person’s capacity to make a specific decision:
- the person’s behaviour or circumstances cause doubt as to whether they have the capacity to make a decision
- somebody else says they are concerned about the person’s capacity, or
- the person has previously been diagnosed with an impairment or disturbance that affects the way their mind or brain works (see paragraphs 4.11–4.12 above), and it has already been shown they lack capacity to make other decisions in their life.
However, just because a local authority or ICB believe that a person cannot make a decision about their care/residence is not a reason in and of itself to suggest that we need to assess a persons capacity to agree to support with personal care lets say where they understand, with staff support/prompting, what support they receive and on a basic level why they need that support.
Step 3 - If there is a reason to consider the persons capacity you have responsibilities outlined again in the CQC regulations 11(3) If the service user is 16 or over and is unable to give such consent because they lack capacity to do so, the registered person must act in accordance with the 2005 Act. and if applicable 11(5) Nothing in this regulation affects the operation of section 5 of the 2005 Act, as read with section 6 of that Act (acts in connection with care or treatment). BUT, this does not mean that either capacity or best interest assessments for day-to-day decision requires ‘formal’ assessments. As the Code of Practice explains:
4.44 Carers (whether family carers or other carers) and care workers do not have to be experts in assessing capacity. But to have protection from liability when providing care or treatment (see chapter 6), they must have a ‘reasonable belief’ that the person they care for lacks capacity to make relevant decisions about their care or treatment (section 5 (1)). To have this reasonable belief, they must have taken ‘reasonable’ steps to establish that that the person lacks capacity to make a decision or consent to an act at the time the decision or consent is needed. They must also establish that the act or decision is in the person’s best interests (MCA Code of Practice).
A “good” capacity assessment would include the following (reference Mental Capacity Guidance Note: Assessment and Recording of Capacity | 39 Essex Chambers):
- You have been clear about the decision that is being assessed (consent to support with: personal care, management and administration of medication, nighttime care and support, moving and handling support, eating and drinking, support in the community, etc);
- Evidence that the person has been given all the information needed to make the decision and that you record the efforts you have taken to promote the persons ability to decide (principle 2);
- Evidence each element of your assessment:
Why could the person not understand, or retain, or use/weigh the relevant information or communicate their decision in spite of the assistance given?
What is the impairment/disturbance in the functioning of, the mind or brain?
How is the inability to decide caused by the impairment/disturbance (as opposed to something else)?
And then in relation to any day-to-day best interest decision (reference MCA – Code of Practice):
5.15 Any staff involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision, setting out:
•how the decision about the person’s best interests was reached (NB: You also need to consider whether there is a person with legal authority for this decision, for example a Lasting Power of Attorney or Deputy? If there is, you should evidence the Legal Authority they hold and the best interest decision they have taken (see - How to be a property affairs attorney / How to be a health and welfare attorney / Deputies: make decisions for someone who lacks capacity).
•what the reasons for reaching the decision were
•who was consulted to help work out best interests, and
•what particular factors were taken into account.
•This record should remain on the person’s file.
In addition:
6.2 Section 5 of the Act provides ‘protection from liability’. In other words, it protects people who carry out these actions [care and treatment]. It stops them being prosecuted for acts that could otherwise be classed as civil wrongs or crimes. By protecting family and other carers from liability, the Act allows necessary caring acts or treatment to take place as if a person who lacks capacity to consent had consented to them. People providing care of this sort do not therefore need to get formal authority to act.
6.6 These actions only receive protection from liability if the person is reasonably believed to lack capacity to give permission for the action. The action must also be in the person’s best interests and follow the Act’s principles.
Step 4 - But what if the care is restrictive in nature or may indicate a person is being deprived of their liberty? In those situations as already mentioned you have additional CQC responsibilities under CQC regulation 11, 12 and 13… But in short, if the care you are giving in the persons best interests could be seen as a ‘restraint’ or ‘restriction’ you need to make sure that in your assessment you have evidenced why you believe this to be both ‘necessary’ and ‘proportionate’ and should you believe that the person may be deprived of their liberty that you make the necessary application.
I hope some of my waffle has helped, and you are absolutely right to say “Best Interests decision (Section 4) is only required after it’s been established that the person lacks capacity for that specific decision at that time.” and you should push back against anyone who claims otherwise. In addition, even when a person is under DoLS this does not mean that they necessarily lack the capacity to make some day-to-day decisions in relation to their care, BUT i would make sure that their care plan clearly evidences why i believe that with all practicable support they can make fully informed decisions in that area.