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.
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?