Assessors of capacity have a lot of responsibility to get it right

With most assessments carried out by social workers or section 12 doctors – especially around the issue of deprivation of liberty – We must consider their knowledge of the persons communication. Seems to me, that a professional arriving and conducting an assessment about capacity with someone they are unlikely to have met before poses many problems. The four stage assessment is simplistic and rather wonderful but throws out the possibility of interpretation.
Does the person understand the information around the decision? A good assessor will need to ask a variety of questions around the decision to fully assess if the person understands. Do all assessors prepare the types of questions? Do they ask the questions in a variety of ways?
Can the person retain the information long enough to make the decision? Is the assessor looking for a consistent answer here? Is the assessor leaving the person for 30 minutes or so and returning. I suspect, if the person does not remember the conversation, then the assessor would record the person does not have capacity. But, I think it is necessary to reopen the discussion and find out if the person has a consistent answer regarding the decision.
Can the person broadly weigh up the benefits and risks? This one is so tricky – As a smoker, I am hard pushed to explain the benefits. I am well aware of the risks. It is important that the person is able to say ‘because I want to – or because I like it’. There are so many risks we all take that we do simply because we want to. It seems to me that we are asking people to jump through hoops that we would struggle to jump through ourselves.
Can the person communicate their decision in any way? So how much effort is gone to here? A person with dementia for instance, may be more lucid in the morning after a good night sleep and breakfast but by the afternoon, their capacity may fluctuate. Does the assessor make sure they assess at a time that is best for the person? Is the assessor listening to staff to ensure they know the answer to this? And once they arrive to assess, are there communication tools for those who may use non verbal communication? Does the assessor spend some time learning how the person communicates? The provider has a role to play here – It is pointless introducing a communication tool at the point of big decision and expecting the person to know how to use it. There needs to be access to a variety of communication tools for everyone in services who has communication difficulties. Speaking louder to them is really not enough. Using tools to make small day to day decisions over a long period of time – recorded as showing a consistent decision maker means that at the time of big decision, the person has a fighting chance of using the tool. The staff making sure the assessor sees the records of how the person decides and is expected to use said tool to best effect.
If we want assessors to be this thorough, we must ensure they are challenged. A visit from an assessor that lasts less than 30 minutes and makes a judgement about a persons capacity must be questioned. There needs to be an expectation that the assessor spends time with the person, their family and the support staff. The staff who may spend more time with the person than anyone must be listened to.
In summary, the assessors need to come at the ‘right’ time for the person, spend time with them, speak to family, advocates and importantly the front line staff. Look at records and learn how the person communicates to ensure the person has a fighting chance of staying in control of their decision making. The providers needs to build communication passports to ensure the person has the tools to make the decision, challenge assessors who do not fulfil this criteria.
To be honest, I am concerned that there is money to be made in independent assessment and seems to mean that assessors are packing out their day with assessments, spending so little time with the person who may be more complicated to assess. I am sure this is not the description of many of the Capacity and BI assessors out there, but I fear does describe how many assessments are conducted. One of the other concerns, particularly in hospitals, is that the front line staff have no time to spend with the assessor who are left to conduct the assessment to too little information or support.
If we are to get capacity assessments to reach the standard expected and hoped for, then everybody needs to work together to keep the person as in control of their decision making as possible.
Trish O’Hara November 2014

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