Law Skills Review Grandpa on a Skateboard - The Practicalities of Assessing Mental Capacity and Unwise Decisons
The practicalities of assessing mental capacity and unwise decisions
Although this slim book feels more aimed at health practitioners it will, nonetheless, be of great practical benefit to legal professionals too. After reading this concise and engaging practical book legal professionals should, at the very least, be able to properly instruct a health professional to correctly assess capacity on a decision-specific basis. And at £10.99 it would economically and most usefully supplement the more detailed books in this area as it gives invaluable practical guidance in an easy to read style. Tim’s skill in making this complex area so accessible should be applauded.
Purpose of this edition
Tim declares from the outset that he is a registered mental health nurse who has experienced first-hand the difficulties practitioners (health and legal) have encountered in translating the Mental Capacity Act 2005 (MCA) theory of assessing capacity into practice. Since setting up his own consultancy he has further expanded his knowledge of assessing capacity and of keeping up with case law changes to the criteria.
By the use of real life case studies and practical explanation the aim of this book is therefore to equip “practitioners everywhere with the skills, confidence and ability to put the theory of the MCA and the two-stage test into practice” thus leading to better outcomes both for themselves and the person being assessed.
Grandpa on a Skateboard is a comparatively brief book (at just 144 pages) but is a very practical guide to the process of assessing mental capacity in individuals over 16. It feels, to a legal professional, that it is aimed more at health professionals, but will still be of assistance to legal professionals too. Tim is obviously very knowledgeable on the legal as well as the clinical aspects of assessing capacity. There are references to decided cases and many illuminating instances given from Tim’s own extensive experience in this area. He also gives stand-alone case studies, as well as the many shorter examples from his experiences.
Structure & layout
The book comprises 5 sections (rather than chapters) and an appendix with the two-stage test set out in greater detail.
Section 1 headed “The boring yet essential stuff” covers the legal aspects health professionals should know, although it is not a bad refresher for legal professionals too! It covers a very brief overview of the MCA, the 5 principles of the MCA, the two-stage test for mental capacity and applying the MCA, with some mention of fluctuating capacity and delirium.
Section 2 turns to setting up the assessment and covers the referral process. It starts by stressing the need to identify the decision to be addressed (which is where the example referral form in section 5 will assist). It looks at picking the most suitable location and time for the assessment of the individual if that is possible in the situation. There is a useful explanation of how to engage with the patient/client.
Following the assessment process through in a logical order, section 3 breaks the two-stage diagnostic and functional test down into steps, with invaluable guidance given, including on enabling communication and recording the assessment in a detailed and robust way. There is an easy to follow flowchart for the 2 stage test which could be used as a crib sheet for the assessment process. In the part on administering the functional test practical guidance is given on how questions should be asked and how information should be presented. This will be useful to legal and health practitioners outside the assessment of mental capacity arena. Section 3 alone is worth the £10.99 for the whole book!
Section 4 looks at common mistakes when assessing mental capacity such as not being specific about the decision in question, using the wrong tests (Tim shares a growing view that the Mini Mental State Exam is not a way of assessing mental capacity), assuming blanket capacity or lack of, asking the wrong questions, making a moral judgement and not validating information such as the actual size of their estate.
The last section contains additional resources as mentioned below.
This book is a useful practical guide to correctly assess capacity. The additional resources in section 5 will greatly assist legal professionals when instructing health professionals and, to a limited extent, help them to carry out assessments themselves. They show health professionals the level of information they need to be provided with before they can carry out a decision-specific assessment.
There are no sample checklists aimed at legal professionals carrying out capacity assessments, but perhaps this is due to the assessment needing to be specific to the decision in question. Tim refers to the need to ask the right questions and core questions which have been developed by his consultancy, but does not set those core questions out. Is the aim for a legal practitioner to engage someone from his consultancy to carry out the assessment?
Section 3 does contain the essentials to be recorded in an assessment and section 5 contains a report template together with a useful anonymised report, although these seem to be aimed more at health professionals than for use by legal professionals. There is a generic referral form, but not a sample letter to a GP requesting evidence of testamentary capacity.
It is a shame the MCA Code of Practice only receives passing mention.
Clarity & readability
The main feature of Grandpa on a Skateboard is it’s easy to read style, coupled with much practical guidance. It is clearly written by a highly skilled non-legal professional, having a more relaxed style than some books in this area. As it is aimed at both legal and health professionals it gives useful clinical information, such as how long antibiotics might take to work in a patient suffering from delirium, while also explaining ambiguous phrases such as ‘unwise decisions’. Such explanations will help health and legal professionals alike. Its small size and easy style make it a quick read.
Relevance to practitioners
This very practical and engaging guide will greatly benefit both legal and health professionals. There are numerous examples of what is best practice, such as it being best for the capacity assessment to be carried out by a multi-disciplinary team, while at the same time acknowledging that reality may make this impossible. Early on the book stresses that capacity is time and decision-specific and there is no such thing as blanket in/capacity. This is repeatedly stressed throughout the book.
As a legal professional it will assist you either in carrying out assessments yourself or enable you to set out exactly what the health professional should be told in advance and the relevant legal tests to refer to. Accurate instructions to a health professional will assist greatly in obtaining a reliable assessment of an individual’s decision-specific capacity at the time of assessment. Conversely, health professionals will:
- understand the legal setting in more detail
- know what information they need to be given beforehand about the individual
- appreciate the specific reason for the assessment
All of which will act as a guide in the assessment process itself so that they can carry out a proper focused assessment.
Thank-you to LawSkills for taking the time to review Grandpa on a Skateboard.