10 top tips to assess mental capacity in different ways during COVID-19

Face to face contact is obviously the best way to conduct assessments of capacity but if this is prohibited or not advisable then alternative methods may be required.

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An assessment of mental capacity is a gateway to making best interest decisions for people who lack the mental capacity to make their own decisions.

Knowing whether a person is able to make their own decisions is a key component to moving forward in best interests.

The Mental Capacity Act 2005 is primary legislation and the Coronavirus Act 2020 has not amended it, suspended it or revoked it. This means it is business as usual but operating in the context of social distancing.

Face to face contact is obviously the best way to conduct assessments of capacity but if this is prohibited or not advisable then alternative methods may be required. The Court of Protection have endorsed using virtual assessments during this pandemic period however, any method followed must be lawful and meet the standards expected of the law.

The burden of proof remains with the professional. The person proves nothing. The evidential test is the balance of probabilities. Are you able to satisfy yourself that you have a reasonable belief that the person lacks the capacity to make the decision at the time it needs to be made because of an impairment or disturbance in the functioning of the mind or brain?

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Bond Solon

Bond Solon, part of Wilmington Professional, is the UK's leading legal skills training provider for Health and Social Care Professionals. We offer a variety of legal-skills training courses to equip professionals with the key legal knowledge and skills to enhance their day-to-day professional roles and to act effectively and to best practice. All our courses are delivered by experienced trained lawyers. They are all subject-matter experts in the areas in which they train. The emphasis on quality of care and ever-increasing expectations inevitably puts pressure on all Health and Social Services staff. Combined with the growing number of Serious Incidents, Serious Case Reviews, and inquiry findings, there has never been a greater need for all professionals to be fully trained and skilled in order to carry out their work to best practice standards. Today, the law is embedded across Health and Social Services, and those professionals engage with the law on a daily basis. The study and practical application of the law by non-lawyers can be a challenge, yet this is a challenge that must be met. It is important that all practitioners are equipped with the key legal skills to enhance their day-to-day professional roles and to act effectively, lawfully and to best practice standards. Bond Solon is the UK’s leading legal training provider for both Health and Social Services practitioners. We work extensively with over 350 Adult and Children’s Services, Acute Trusts, Ambulance Trusts, Primary Care Trusts and Mental Health Trusts as well as a large number of regulatory bodies including; NHS England, HCPC, CQC, Parliamentary and Health Ombudsman, and Department of Health, to name a few. Bond Solon is also the UK’s leading provider of expert witness training and CPD events for medical experts. We provide training covering the core areas of expert witness work. In conjunction with Cardiff Law School we offer university certificated training for experts who act in civil, criminal and family law proceedings. Finally, we host an annual conference which is the largest gathering of expert witnesses in the UK.
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