The assessor (56) must be eligible to be either a best interests assessor or a medical assessor. Consideration should be given to using an assessor who already knows the person if this is possible, since it is likely to reduce the stress of being assessed, and enable the relevant person to be at their most relaxed. The assessor should also have professional experience and knowledge of the possibly incapacitating disorder the person lives with – for example, learning disability, dementia, multiple sclerosis or acquired brain injury.
A supervisory body audited the skills of its best interests assessors and mental health assessors, and found a lack of expertise relating to acquired brain injury and neurological conditions. The governance group identified professionals with the appropriate skills and professional knowledge, and encouraged them to train in order to join the pool of assessors.
It is crucial for the assessor to be clear that they are assessing the person’s capacity about a specific question whether or not he or she should be accommodated in this particular hospital or care home, for the purpose of being given some specific care or treatment.
Assessors must be clear that this is a separate assessment from that relating to the capacity to engage in contact with family and friends: a person may have capacity to decide who they want to socialise with, but lack capacity to consent to the question of accommodation in a care home or a hospital.
Section 4.29 of the DoLS code of practice (57) emphasises that ‘the assessment refers specifically to the relevant person’s capacity to make this decision at the time it needs to be made. The starting assumption should always be that a person has the capacity to make the decision’. Chapter 3 of the main MCA code of practice discusses in detail ways to empower people to make their own decisions. Any assessment of capacity must also demonstrate that every effort has been made to enable a person to make their own decision.
The assessment must give evidence, at every stage, of how the person was assessed for the two-part test, and which elements of the ‘four functional tasks’ they could not manage, even with every assistance and support given as required under the second principle of the MCA. (As described in the MCA code of practice, Chapter 4, these four tasks are: to understand relevant information appropriately presented, retain it for long enough to use and weigh it to reach a decision, then to communicate by any means possible that decision)The fourth step, inability to communicate, specifically refers to someone who cannot communicate in any way whatever, such as a person in a coma or with locked-in syndrome (see Section 4.15 of the MCA code of practice (58)).
When considering a person who is self-neglecting, it can sometimes appear that a series of small decisions, each taken with capacity, could incrementally lead to a situation that was not chosen but which the individual did not have the capacity to understand and change. The distinction in the literature between decisional and executive capacity is seldom found in practice and its importance for determining responses to self-neglect needs to be considered further and be more fully understood in practice.
The emotional components of capacity are hard to identify, but may prevent the person from using and weighing information through, for example, fear of ‘the state’ or shame at not coping. (59)
For an example of an audit tool to scrutinise DoLS assessments of mental capacity, see Appendix 3.