Assessments of mental capacity: upholding the rights of the vulnerable or the misleading comfort of pseudo objectivity?

Abstract

Purpose

The purpose of this paper is to present findings from a research project which investigated the approaches of different groups of assessors to the mental capacity assessments which are required to be conducted as part of Deprivation of Liberty Safeguards (DOLS).

Design/methodology/approach

Four case study vignettes were given to participants. Three groups involved in the DOLS assessment process were interviewed by telephone about the factors that may influence their capacity assessments.

Findings

Most assessors did not refer to the required two-stage test of capacity or the “causative nexus” which requires that assessors must make clear that it is the identified “diagnostic” element which is leading to the inability to meet the “functional” requirements of the capacity test. The normative element of capacity assessments is acknowledged by a number of assessors who suggest that judging a person’s ability to “weigh” information, in particular, is a subjective and value-based exercise, which is given pseudo objectivity by the language of the Mental Capacity Act (MCA). A number of elements of good practice were also identified.

Research limitations/implications

In this exploratory study, participant numbers were small (n=21), and the authors relied on self-report rather than actual observations of practice or audit of completed assessments.

Practical implications

The findings are of relevance to all of those working in health and social care who undertake assessments of mental capacity, and will be helpful to all of those tasked with designing and delivering training in relation to the MCA 2005. They also have relevance to policy makers in the UK who are involved with reforms to DOLS regulations, and to those in other countries which have legislation similar to the MCA.

Originality/value

Much existing literature exhorts further training around the MCA. The authors suggest that an equally important task is for practitioners to understand and be explicit about the normative elements of the process, and the place of ethics and values alongside the more cognitive and procedural aspects of capacity assessments.

Citation

Rogers, J. and Bright, L. (2019), "Assessments of mental capacity: upholding the rights of the vulnerable or the misleading comfort of pseudo objectivity?", The Journal of Adult Protection, Vol. 21 No. 2, pp. 74-84. https://doi.org/10.1108/JAP-10-2018-0026