“Proportional assessments,” remote assessments, the Care Act and the MCA

Chief social worker for adults Lyn Romeo and principal social workers have issued (8 August 2023) guidance on carrying out proportionate assessments under the Care Act 2014.  As it says in the introduction:

This guide, written in partnership with principal social workers, offers a series of suggestions and case studies to help practitioners, their local authorities and trusts consider the positive lessons learned and opportunities from the pandemic to adjust practice in a person-centred way. It will also help professionals think carefully about how they respond in line with the Care Act 2014 in proportionality and work alongside people (and their carers) who are in need of care and support. This is a supplementary guide to the Care Act 2014 and Care and support statutory (‘CASS’) guidance. 

The guidance will no doubt provoke important discussions about the meaning of proportionality.  It also says this, of relevance to the MCA 2005:

Mental capacity assessments should normally be completed in person, but it may be appropriate to carry out the assessment remotely if, for example, it is not possible to visit the person.

The principles of the Mental Capacity Act 2005 must underpin assessments where there is a proper reason to doubt that the person has the capacity to make the decision in question. Most deprivation of liberty safeguards assessments should be face to face in order to, for example, meet any communication needs of the person.

An important principle of the Mental Capacity Act 2005 is that it must be assumed that the person has capacity unless it is established that they lack capacity. Assuming capacity, however, should not be used as a reason for not assessing capacity in relation to a decision. There should always be an assessment where there is a proper reason to doubt a person’s capacity to make a decision.

It is from my perspective very helpful that this section emphasises the need to consider capacity where there is proper reason to do so – as the courts have reminded us:

The presumption of capacity is important; it ensures proper respect for personal autonomy by requiring any decision as to a lack of capacity to be based on evidence. Yet the section 1(2) presumption like any other, has logical limits. When there is good reason for cause for concern, where there is legitimate doubt as to capacity [to make the relevant decision], the presumption cannot be used to avoid taking responsibility for assessing and determining capacity. To do that would be to fail to respect personal autonomy in a different way.

In relation to the question of conducting assessments in person, it may also be useful to see what we said in our guidance note on assessing and recording capacity:

Remote assessment undoubtedly poses particular challenges, and requires considerable creativity if it has to be undertaken. It should never be undertaken simply for administrative convenience.

Some of those challenges, and ways in which it is proving possible to overcome those challenges, are discussed in this webinar led by Alex for the National Mental Capacity Forum. However, the following key points are crucial:

    • None of the fundamentals set out above, or below, are altered by the need to conduct assessments remotely. However, preparation – including identification of the decision in question and the information relevant to the decision – becomes all the more important. Indeed, some DoLS assessors have identified that this process means that they are ultimately more confident that the assessment that they have reached is robust than might have been the case when they carried out such assessments previously;
    • The requirement is always on the assessor to explain why, on the balance of probabilities, they have reached the conclusion that they have as to the person’s capacity. Where assessments are taking place remotely, it may well be that the evidence that they take into account includes a considerable amount of ‘triangulation’ of the evidence that they have gained by way of the (remote) assessment of P themselves. In a limited number of cases, this surrounding evidence may have to do all the work because it is simply not possible to interact even in a limited way with P remotely;
    • In some cases, assessors have identified that, in fact, providing P with technology and enabling a remote assessment constitutes a practicable step to supporting them to make their own decision – for instance, an autistic person who is more comfortable talking by video than face to face.
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