A mental capacity assessment is being carried out for the court under a s21A appeal for my partner by a LA social worker. He has said he wants to do it over 2 sessions on a one-to-one basis, and has asked the 3 appointed attorneys not to be present. There’s a history of non MCA compliant assessments by this local authority. Where’s the scrutiny? Can anyone advise please?
Reminds me of ‘certain nameless’ doctors: see a patient in a room in a hospital 1:1 and immediately sign of a T2 certificate of capacity to treatment.
I never see any patient on my own - save for brief periods, emergencies etc and with appropriate arrangements.
The court quite probably made detailed directions under S21A MCA 2005. It would be inappropriate of me to comment on matters related to that, without seeing the substance of it and knowing the details of the case. [Caution: the latter is not a request]
But.. but.. not to worry, someone who wants to be seen as more helpful may come along shortly and give authoritative opinion and advice.
The capacity assessment means it should test certain specific decisions. But everybody except me is satisfied with statements such as ‘capacity about where to live’. My capacity assessments always include the word decision or something close to it.
I usually invite a significant other to be present, and I haven’t encountered a difficulty with the assessment being recorded for the purpose of a report.
Of course some pedant will expect me to test the patient’s capacity to decide whether a significant other should be present and if not, then proceed to a lengthy S4 (best interests) assessment. I’ve never been challenged on appropriate use of S5 - but I always am gagging to be hauled into court. Why? Because everything I do in those matters are OCD-close to the letter of the law. I like courtrooms.
Not advice - but I know of nothing preventing you, assuming you have locus standi (which is not only for Judicial Review issues), from asking the assessor, orally and in writing, why they want the assessment to be one to one.
[I suspect myself of AI generated text in the above - though nothing above was AI generated. I am free to suspect what I like.]
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Hi Maggie. I do MCA assessment for Court of Protection proceedings and my approach varies depending on the issues at hand, who are parties to the case and the person at the centre of proceedings. There is no right or wrong way to approach these matters, what is important is being open about the rationale for why an assessor decides to approach it in a particular manner and how they will ensure the person is properly supported to enable them to engage in the process of assessment.
I’d suggest exploring with the social worker why they want to approach it in that manner, how they will ensure a robust assessment considering the triad approach (information from the person; information from people who know the person well and information from records). See here for helpful guidance that the social worker should be following https://www.39essex.com/our-thinking/newsletters/mental-capacity-guidance-note-assessment-and-recording-capacity/
The scrutiny will come from the review of the assessment report and if necessary questions of the assessor in an oral hearing. Where concerns continue to pervade the Court might consider instructing an independent assessor/expert witness.
I hope this is helpful to you and that the matters become resolved for your partner.
Thank you both for your replies. On the basis of the suggestions, I have written to the assessor to ask what is the rationale for the one to one assessment, what are the specific decisions he will be assessing, and whether he has asked my partner if he would like someone to be present. I’m hoping to get some comprehensive answers, but we’ll see. I escalated a previous dubious Care Act assessment (by same LA, different social worker) and by way of complaint to the ombudsman and an ISW was commissioned. No court processes were involved at that time. Thank you both for your different perspectives. Very useful insights.
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And.. resonating with my sentiments about psychiatrists (in general who do capacity assessments), they could say what they like on testing of their reports. Courts really a fine enough ‘comb’ to pick out what’s wrong with reports. How would I know? I have seen rubbish in reports that they missed. [Caution: I am not saying the report by the captioned individual will be rubbish, just in case.]
The OP appeared be concerned about
I could understand attorneys not being present. It’s simply not their business to be sitting there breathing down the neck of an assessor (metaphorically, of course). But usually from my long experience a ‘significant other’ is in the ‘room’. The apparent need for ‘total privacy’ or ‘isolation’ of the assessment causes me to raise eyebrows.
There is a thing called ‘openness and transparency’. It’ll take 20 more years for cultures and their encased mindsets to change? How would I know, it’s nothing new. It was rolled out in 20 years ago in great fanfare. I’ve not seen it in the cultures. So it must take another 20 years perhaps.
Great job.
Excellent with ombudsman and ISW.
That’s the sort of thing I would do when in ‘War Mode’ - which doesn’t mean you or anyone else who does similarly are in War Mode.
I apologise for typos in other posts. I had to deliberately make them to appear not as an AI. But I trust you and others got the drift.
Never back down. Always hold professionals to account. Avoid phone calls. Bend but never break.
This is my last post in this thread. Due to my chronic anti-woke misbehaviour and allegations of use of AI, I am only allowed three responses in any thread.
Best wishes for the future to you and yours. 
Thank you again for all replies and suggestions. This situation is evolving, and becoming more concerning.The response to my questions about the rationale for isolating my partner during upcoming mental capacity assessments has been to ensure the responses aren’t influenced by any support figures.
However, my partner has specifically asked for support to be present. I am concerned that isolating him with a stranger will cause anxiety, which itself will bias the outcome and prevent him from demonstrating their true capacity (violating Principle 2 of the MCA regarding “all practicable steps” to support the person).
Furthermore, the assessor sent me an email explaining this rationale but added a “confidentiality” warning, stating I must not share the email with anyone outside the Local Authority without their express consent.
My questions for the group:
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Is it lawful (or standard practice) for an assessor to insist on a “vacuum” when the person has asked for support?
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Can a Local Authority assessor legally prevent me from sharing their stated “rationale” with the Official Solicitor, who is representing him in active court proceedings?
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Has anyone else encountered an assessor trying to “gatekeep” their methodology from the legal representatives in a S21A appeal?
I appreciate your responses as being a litigant in person where the power differential is so marked is very disempowering.