A New Era in Mental Capacity Assessments: Changes from the Mental Capacity Amendment Bill (2019)

In July 2023, a significant transformation in mental capacity assessments came into effect with the implementation of the Mental Capacity Amendment Bill 2019. Whilst some aspects of the bill were delayed until the next Parliament (or the one after that, or the one after that...), several fundamental changes have already been put into practice. This blog explores the key modifications that are reshaping the way we evaluate and safeguard the rights of individuals with impaired mental capacity.

1. Legal Assessment Over Medical Evaluation:

One of the most substantial shifts brought about by the Mental Capacity Amendment Bill is the confirmation that a mental capacity assessment is not a medical assessment but is, in fact, a legal assessment. The Mental Capacity Amendment Bill (2019) has unequivocally abolished the dominance of the historical notion that mental capacity assessments should be solely completed by medical experts, such as GP's. Instead, the emphasis now lies on the assessor possessing relevant qualifications, knowledge, and skills, thereby promoting the idea that determining an individual's mental capacity is no longer the exclusive domain of medical professionals. This shift ensures a more inclusive and holistic approach, acknowledging the importance of diverse expertise in assessing mental capacity and empowering individuals with impaired mental capacity to have their rights and autonomy upheld. Instead, the assessment is now grounded in legal principles and standards, emphasising a more holistic and rights-based approach.

2. Qualifications and Skills of Assessors:

Under the new regulations, assessors responsible for determining mental capacity no longer need to hold specific medical qualifications. Previously, assessors were often required to be medical doctors or psychiatrists. However, with the implementation of the bill, assessors must demonstrate relevant qualifications, knowledge, and skills specific to assessing mental capacity. This change promotes inclusivity, allowing a diverse range of professionals with expertise in the field to contribute to the assessment process. At Nellie Supports, our Social Workers not only meet but surpass these criteria with exceptional expertise. The assessment of mental capacity constitutes their primary role, providing them with extensive experience in practical aspects of assessment. Moreover, their commitment to continuous professional development ensures that their knowledge of current legislation and case law is at the highest possible level. With a dedicated and skilled team, we are steadfast in delivering comprehensive and reliable assessments, prioritising the well-being and autonomy of those we serve.

3. Functional Test as the Primary Stage:

In the past, mental capacity assessments followed a two-stage test: first, assessing impairment of the mind or brain, and second, applying a functional test to determine the individual's capacity to make specific decisions. However, the bill has revised this approach, making the functional test the primary stage of assessment. The emphasis now lies in evaluating an individual's abilities and functional capacity to make decisions rather than solely focusing on medical diagnoses.

4. Emphasis on Impairment:

Another crucial aspect of the updated mental capacity assessment is the emphasis on impairment. The previous approach tended to prioritise diagnoses and the underlying medical causes of mental incapacity. In contrast, the new framework underscores the significance of evaluating the level of impairment itself, recognising that the ability to make decisions may vary despite the presence of a specific medical condition. With a firm emphasis on evidence-based assessments, it becomes imperative to sufficiently substantiate any impairment of the mind or brain. Merely stating that "Mr Smith has dementia symptoms" may not be considered adequate evidence. To address this, we at Nellie Supports prioritise continuous training for our Social Workers in cognitive assessment. This enables us to conduct additional cognitive assessments when evidence of impairment cannot be obtained through health and care records, ensuring thorough and well-supported evaluations for the benefit of those we serve.

5. Additional Evidence for Decision-Making:

With the Mental Capacity Amendment Bill in effect, the Court of Protection has introduced the COP3 form, requesting additional evidence related to the support provided to the individual. This new requirement is designed to promote adherence to the core principles of mental capacity assessments. Assessors now need to present evidence regarding the support offered to the individual during the decision-making process and the relevant information considered while determining their mental capacity. We are proud that over the past four years, we have incorporated this requirement in our assessment reports, ensuring that our evaluations fully consider all underlying principles of the Mental Capacity Act 2005 (its great to see the law catch up with us!). By providing additional evidence related to the support given to the individual during the decision-making process, we have remained steadfast in upholding the core values of mental capacity assessments. This dedicated approach guarantees that our assessments not only comply with the regulations but also prioritise the rights and well-being of individuals with impaired mental capacity, fostering a comprehensive and empowering assessment process.

Conclusion:

The Mental Capacity Amendment Bill 2019 has ushered in a new era in the evaluation of mental capacity. By shifting the focus from medical to legal assessment and placing greater importance on functional capacity and impairment, the bill strives to create a more comprehensive and inclusive approach. Additionally, seeking additional evidence about the support provided to individuals ensures that the decision-making process aligns with the principles of mental capacity assessments.

As we await the full implementation of the bill, including its provisions regarding liberty protection safeguards and DOLS, it is clear that these changes mark a positive step forward in safeguarding the rights and autonomy of individuals with impaired mental capacity. The evolution of mental capacity assessments will continue to shape the way we protect and empower some of the most vulnerable members of our society.