What determines that a person has lost mental capacity?

Discussion in 'Recently diagnosed and early stages of dementia' started by sparky023, Feb 8, 2016.

  1. sparky023

    sparky023 Registered User

    May 16, 2010
    Hull, East Yorkshire
    A social worker has seen Dad this morning and deemed him to be without capacity. She said he can make straight forward decisions, as in which sandwich to choose for lunch, and which paper he'd prefer to read, but she apparently asked him how long he's been in hospital and what he's there for, and he couldn't answer. Well, no, he's been in for 5 weeks now and for anyone you'd lose track of day of the week and how long it's been, but given he has short term memory problems, he can't remember why he's been kept there.
    I spoke to Dad yesterday about withdrawing cash to pay for a workman at his home. He agreed and asked me all about it, and he seemed very clear of the decision and not muddled. He might not remember that conversation this evening, but he knew the decision he was making yesterday.

    So how is it judged?
  2. marionq

    marionq Registered User

    Apr 24, 2013
    When a SW assessed my husband while in day centre she found him to be without capacity because he didn't know what year or month it was, where he was or why he was there, or what his address was. I couldn't disagree. She also said how polite he was and such a gentleman. That softened the blow!
  3. pseudonym

    pseudonym Registered User

    Sep 3, 2015
    Decision making

    I understood it was all about the ability to make decisions. My Mum has trouble deciding what to eat, or what to wear. Her decision making ability was always bad. But the SW (last year now before a family meeting) decided she had mental capacity but couldn't make decisions. :confused:
  4. fizzie

    fizzie Registered User

    Jul 20, 2011
    I would ask for another assessment by someone qualified - a memory clinic consultant or a Community Psychiatric nurse or similar and make a note of the decisions your Pa can make. It doesn't sound right to me.
  5. Kevinl

    Kevinl Registered User

    Aug 24, 2013
    It's a good question, years ago the DWP gave me deputyship for my mum as 2 ladies from there came round to see her and decided she wasn't capable so I could deal with all her benefits claims, pretty much the same for my wife now.
    GP's as far as I can see stay well out of it so who can legally "deem" someone to lack capacity, one social worker as Sparky says, I can't see what the law is on who's allowed to make this life changing decision.
    So OP's question "What determines that a person has lost mental capacity?" but with a tag on who exactly is legally allowed to do it, just one social worker's say so as happened to Sparky?
  6. nitram

    nitram Registered User

    Apr 6, 2011
    North Manchester
    "What determines that a person has lost mental capacity?"

    The legal answer is the court on receipt of a completed>>>COP3<<<

    More usually capacity for any action is decided less formally, the tests described in Note 4 of the linked document should be used.
  7. reedysue

    reedysue Registered User

    Nov 4, 2014
    There is a clause in my mum's LPA that says she will allow her GP or a hospital doctor to decide whether she has capacity, I assume that this would not allow another healthcare professional to make the decision.
  8. Crunchy

    Crunchy Registered User

    Feb 21, 2016
    The frustrating thing about Capacity judgements is that they only relate to a specific question at a specific time. So Capacity fluctuates in all of us. It has to be this way, so that professionals can make decisions in our interests when we are unable to do so (eg in A&E after an accident, under general anaesthetic, or when we've had a few too many drinks maybe?!).

    In an assessment, someone with dementia who has enough awareness of their situation to know that they need to say the "right thing" in order to stay in their own home (for example), may give the impression of having capacity to make that decision, at that interview. Intelligent people get dementia! I witnessed this several times with my father, an ex teacher who was fully aware that he was being tested in some way, and that if he towed the line, he would be more likely to get his own way, which in his case involved staying at home without any support. It is utterly infuriating if you are trying to support someone who is clearly struggling to care for themselves most of the time, who then charms the pants off the latest visiting social worker ;)
  9. nita

    nita Registered User

    Dec 30, 2011
    The memory specialist asked me to leave the room and talked to Mum for half an hour in which time he ascertained she had lost capacity. I have no idea what he said to her or asked her. I presume he might have asked her something at the start of the consultation and repeated the question again later on by which time she had forgotten what she had said.

    He completed the COP3 for me.

    Correction: it wasn't as long as half an hour. Possibly a quarter of an hour!
  10. cobden28

    cobden28 Registered User

    Jan 31, 2012
    My Dad died in 2005 with 'senile dementia' listed as one of the causes of death (the other was heart failure) - he was 84 at the time, and had been in full-time residential care for three years. My parents divorced fifty years ago, Dad's second wife had died, and because Mum and I live at the opposite ends of the country day-to-day care of Dad fell on the shoulders of my half-sister, dad's daughter by his second wife, who is fourteen years youngest than me and still living in our home town in the north-east of England.

    An incident occurred within the family in which it was thought that Dad, had he been aware of what was happening, might want to change his will - which had been written in 1987 when his mental capacity was not in doubt. I duly alerted Dad's solicitor who, because of the legal implications of changing a will and because Dad was in hospital/residential care with memory problems, called in a consultant psychiatrist to determine whether Dad had the mental capacity to understand the implications of what he was being asked to do.

    I have a copy of the consultant psychiatrist's written report and it states 'senile dementia to a marked degree' meaning of course that Dad did not have the mental capacity to understand the implications of changing his will. Thus his will, written before he lost mental capacity, was still valid.
  11. Pete R

    Pete R Registered User

    Jul 26, 2014
    Yes a Social Worker can make the assessment.

    It really has more to do with if your Dad can make decisions about his care especially if a Care Home is being suggested. It may also be that a Deprivation of Liberty order is needed and I do not think you cannot be placed under one if you do have capacity. Your Dad is still perfectly entitled to make decisions like you stated about withdrawing money, it does not mean he cannot make any decisions in the future and he should always be consulted.

    I was present at the first one Mom had in hospital and it was a farce and caused her great distress. It was conducted by someone who was introduced as Mom's SW but was not a fully qualified SW (a very common but often unexplained distinction) however a qualified SW was present for this test.

    Mom was due to have another when in the NH and I was very concerned and questioned the new SW. I have copied her reply to me which I feel explains WHY very well indeed.

    "Mental Capacity Assessments under the Mental Capacity Act 2005 are specifically related to one decision. The Mental Capacity Assessment that was carried out by the hospital discharge team in July 2014 was in relation to finances. Although there is some mention of how to meet care needs, there is no conclusion about her capacity in relation to accommodation in the Mental Capacity Assessment carried out at that time, hence a decision has not been made on Ms R’s capacity in relation to her understanding of her care needs and how to meet them.

    As Ms R meets the two stage diagnostic criteria for a decision specific assessment under the Mental Capacity Act 2005 (evidenced by she has a diagnosis of Vascular dementia and the MMSE scores), the local authority are required to complete the assessment to evidence whatever action is being planned to be taken (i.e. permanent care home placement) is in Ms R’s Best Interests. This is a statutory part of the application to meet local authority requirements for authorisation and funding for a permanent placement and is considered a reasonable request. Without a formal Mental Capacity Assessment being completed, the law states that Ms R would be assumed to have capacity and would be assumed to make decisions regarding her care.

    I would be carrying out the assessment and I assure you that this will not be carried out in a harsh manner, especially within consideration to Ms R's emotional needs. The meeting can be a short chat where I ask some basic questions and record Ms R’s responses. It will not be in the form of a memory assessment where she is asked specific questions with “correct” answers. The questions I would ask would be around where she believes she lives and if she understands she needs some help to manage her care needs. If she becomes upset at any point then the assessment will be stopped.

    People who are in a permanent care home placement or hospital setting who have been deemed to lack capacity require a Deprivation of Liberty Safeguards (DOLS) to be completed if the person does not have the capacity (which is established within a Mental Capacity Assessment) to agree to that care. A DOLS is completed for people who are considered under “continuous supervision and control”, and a permanent placement could be considered as continuous and a form of control (e.g. lack of being able to access the community independently), also they may not be free to leave. The home complete the DOLS and then it is considered by the local authority, and authorised or not depending on the circumstances."

    Hope that helps.


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