Difficulty in engaging the person in the assessment
- A problem that can be encountered in practice is where it is difficult to engage the person in the process of assessment.
- It is important to distinguish between the situation where the person is unwilling to take part in the assessment, and the one where they are unable to take part. As Hayden J emphasised in Re QJ: “[i]t is important to emphasise that lack of capacity cannot be established merely by reference to a person’s condition or an aspect of his behaviour which might lead others to make unjustified assumptions about capacity (s.2(3) MCA). [In this case, a]n aspect of [the person’s] behaviour included his reluctance to answer certain questions. It should not be construed from this that he is unable to. There is a good deal of evidence which suggests that this is a choice.” QJ v A Local Authority & Anor  EWCOP 7.
- However, you do not need mechanically to keep asking the person about each and every piece of relevant information if to do so would be obviously futile or even aggravating.See AMDC v AG & Anor  EWCOP 58 at para 28(h) per Poole J, talking about a report to the Court of Protection, but equally relevant to any other report, including for purposes of e.g. DoLS.
What you need to do is:
- To consider what steps could be taken to assist the person to engage in the process; and
- To record what steps were taken and what alternative strategies have been used.
- It is also important to think of ways in which you can persuade the person to take part, for instance by explaining to them that helping you – the assessor – is likely to help them, because it will maximise the chances that you will find that they are able to make the decisions.
Examples of creative solutions to problems with engagement
It is often helpful to liaise with others about what alternative strategies might help. Solutions in reported cases have included
- identifying whether the reason for non-engagement is embarrassment about particular issues and finding ways of assessing capacity which do not require confronting the person with the issueSee Re FX  EWCOP 36.;and
- giving the person an element of choice as to who will carry out the assessment.Wandsworth Clinical Commissioning Group v IA  EWCOP 990.
Remember that you could be the problem and that it may not be your fault: you could simply be the ‘wrong’ gender or from the wrong cultural background.
- If you think that the difficulty is because someone else is putting the person under pressure not to talk to you or engage with you, you may need to think about asking the High Court for help under its inherent jurisdiction. However, you should always remember that the Court of Protection can make an order requiring the person who is in the way to allow access where it has reason to believe that the individual in question may lack capacity.See, for instance, Re SA  EWCA Civ 128.
- Ultimately, however, it is not possible to force a person to engage in a capacity assessment. You will therefore need to consider whether you have enough surrounding evidence to come to a reasonable belief about capacity or incapacity. Reasonable belief about incapacity will be needed if steps are going to be taken on the basis of s.5 MCA 2005. If the stakes are high, for the person or others, you may need to make an application to court to decide whether the person has or lacks the capacity to make the relevant decision.
|↑1||QJ v A Local Authority & Anor  EWCOP 7.|
|↑2||See AMDC v AG & Anor  EWCOP 58 at para 28(h) per Poole J, talking about a report to the Court of Protection, but equally relevant to any other report, including for purposes of e.g. DoLS.|
|↑3||See Re FX  EWCOP 36.|
|↑4||Wandsworth Clinical Commissioning Group v IA  EWCOP 990.|
|↑5||See, for instance, Re SA  EWCA Civ 128.|