Leading or Informing
I was recently asked to review an assessment of capacity in relation to a person’s will. The report stated “I asked P if he knew what the value of their estate and P replied ‘No’”. The author of the report drew from that the conclusion that ‘P’ did not have capacity to make a will. I spoke to the assessor and asked them if they had explained to P what the value of their estate was and they informed me that they hadn’t adding, “I thought we weren’t allowed to ‘lead’ the client”.
It is true that we are repeatedly told that we mustn’t ‘lead’ the client but there is a difference between leading the client and giving them the necessary information, without prejudice, to enable them to make a decision.
A legal perspective – in the ruling of PH and A Local Authority v Z Limited & R  EWHC 1704 (Fam) we are warned against expecting P to be able to work from a blank canvas. It states;“The person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed”. Furthermore, the second principle of the Mental Capacity Act (2005) s.1(3) states, P is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
If you have not given P the necessary information to be able make an informed decision, can you really claim to be abiding by the above principle? The danger of the blank canvas does not, of course, only apply when using the MCA. In the case of Hoff v Atherton (2004) it was found that the court has to be satisfied that a would-be testator had the capacity to understand and recognise the matters referred to under the Banks v Goodfellow test, not that they actually did understand or recognise them. For example it may be sufficient to show that the testator would have been able to, on the balance of probabilities, understand the extent of their estate if it was described to them.
We are regularly confronted by clients that are attempting to understand complex and new ideas, often for the first time. To expect them to work from ‘a blank canvas’ is not only unrealistic but is also contrary to both the MCA principles and various court judgements. As the assessor, it is your duty to provide them with the necessary information to enable them to make an informed decision. This can and should be done without leading P in any direction and certainly not down the garden path. If you have a client that needs a mental capacity assessment or you would like further information about the practicalities of assessing mental capacity then contact TSF Consultants on firstname.lastname@example.org or call 0333 577 7020