In the context of decision making and mental capacity assessments a person needs to be able to retain information for long enough to make a decision. The presence of memory difficulties, like communication difficulties does not automatically mean someone lacks the capacity to make a decision. The person conducting the assessment must take the appropriate practical steps to support the person.
A mental capacity assessment is not a memory test and the person is not expected to rely on free recall alone. An idea of the person’s cognitive abilities can be gained by the results from the cognitive assessments. This information can be used to inform you as to how to support the person.
When looking at this component in assessment of capacity the presence of memory difficulties can range from mild through to profound. These can be significant to the decision being made due to small inaccuracies through to gross inaccuracies in recall. Often we can ascertain the presence of memory difficulties through communication and observation of behaviour. So what if the person has difficulties with their expressive communication?
How do we know someone has retained the information in the absence of being able to verbalise it?
As per the previous blog we can make use of a range of resources by which to support understanding. These resources can also support with expression and recall. This could mean asking the person to point at the options they have. E.g. with regards to types of accommodation which have been discussed with them. Or for testamentary capacity drawing out a family tree and completing it with the person making the Will. Some individuals benefit from verbal or written prompts to recall information where as others recall can be improved by considering the time of day and environment they are in.
Where there are known communication impairments it is advisable to seek support from a speech and language therapist with the assessment. Expressive deficits such as word finding difficulties (in the case of aphasia) can mask capacity.
A frequent discussion point amongst professionals relates to how long a person needs to retain information for. It is for long enough for the decision to be made, as per the MCA (2005). With any legal decision, whereby the individual is learning and dealing with more abstract and complex information is advisable to spend time going over the relevant information for the decision. This may be over a period of hours, days or weeks (depending on the nature of the decision). One should then monitor the consistency of the response. For some individuals repetition can support with retention, but for others it may bear no impact.
Read Jo’s series of other communication blogs – Communication and the Mental Capacity Act (2005) and Part 2: Understanding the decision. Or for more information about mental capacity assessments please call the team on 0333 577 7020 or email firstname.lastname@example.org