Circle Case Management’s Mental Capacity Assessment service is led by critically acclaimed and industry leader, Dr. Abi Cheeseman who has been instructed on an extremely wide variety of assessments and states:

“No two assessments are the same and each capacity question has to be addressed individually. P could have the capacity to make their own medical, housing or relationship decisions, but may lack capacity to make financial decisions, for example.”

Q: Can one mental capacity assessment be used to ask about two different aspects of P’s life?

A mental capacity assessment is a process used to determine an individual's ability to make specific decisions. There is no such thing as a ‘blanket’ or generic assessment for mental capacity.

While there may be significant overlap in the types of knowledge and understanding needed for different decisions, each decision or matter must be examined according to the unique circumstances of that individual. There are several reasons why the assessment process may differ across different types of decisions:

1. Nature of the decision/activity:

Managing finances and deciding whether to engage in sexual activity involve distinct types of decision-making and responsibilities.

Assessing mental capacity for finances typically focuses on evaluating an individual's understanding of financial concepts, ability to manage money, paying bills, understand how to store and access money, make informed choices about investments, and protect themselves from financial exploitation.

On the other hand, assessing mental capacity for engaging in sexual relations evaluates an individual's understanding of the nature and consequences of sexual activity, theirs and their prospective sexual partner’s right to say no, ability to consent or withhold consent, and their capacity to understand and protect themselves from potential harm or exploitation.

2. Legal and ethical considerations:

The legal and ethical frameworks surrounding financial decisions and sexual activity differ significantly. Laws and regulations governing financial transactions and contracts are complex and designed to protect individual’s financial interests.

Assessments related to financial capacity often consider an individual's ability to comprehend legal obligations, contractual terms, and financial risks.

In contrast, assessments related to sexual capacity involve considerations of consent, the law as it relates to sexual offences, personal autonomy, and potential risks to physical and emotional wellbeing.

3. Cultural and societal factors:

Societal attitudes and cultural norms play a role in shaping the assessment of mental capacity. Different societies or cultures may have varying perspectives on financial decision-making and sexual activity.

For instance, in some cultures, age, gender, or marital status may influence the evaluation of mental capacity in relation to sexual activity. These factors may not be as prominent in assessments related to financial capacity.

Q: How do you know how many assessments are needed?

Every enquiry to our MCA department comes through to Kirsten, MCA Technical Team Manager who initiates our triage process.

Quite often we will need to request further information or gain clarity from the instructing Deputy, Solicitor or individual so that we can be certain as to what specific decisions are in question and how the opinion should be documented.

Sometimes we are asked to assess for more than one decision, for example capacity to manage finances and testamentary capacity.

It’s important that we uphold the principles of the Mental Capacity Act by ensuring that each decision is assessed separately, and that the client is provided with as much support as necessary to make their own decisions. This could include special adaptations or be as simple as providing the client with more time.

We try to make the entire process as easy as possible for the client and the instructing party by being open and honest that more than one appointment may be required to ensure a robust and water-tight assessment.

It is also important that assessments of capacity are not viewed as a ‘one off’. A person may fail to acquire, lose or regain capacity for a given matter as they go through their life. Mental capacity is something that needs to be re-visited and reviewed.

There can be several reasons why someone might need more than one visit or appointment . Here are a few possible scenarios:

1. The nature of the client’s difficulties and making adjustments to provide maximal support to the client:

Principle 2 of the MCA 2005 states that the person must be given all practical help and support to make their own decisions.

In some cases, this could mean that information needs to be provided in different forms (pictures, signs, social stories) or that the person needs to have a period of education about a topic before their capacity can be fairly assessed.

It could be that the person experiences extreme fatigue or a short attention span and can only engage in short sessions of 20-30 minutes. These are just some examples of why assessments cannot always be achieved in one appointment.

2. Fluctuating Capacity:

In some cases, the client may have a difficulty or condition that fluctuates over time, either as a core part of the condition or triggered by another factor, for example medication, environmental factors.

Some clients may be susceptible to infections or other secondary health problems that serve to exacerbate pre-existing problems.

Under these circumstances it is important to understand how the condition affects the person and the variation seen in presentation. This could well mean meeting the client over 2 or more sessions.

3. Progressive conditions:

Some neurological conditions, such as Alzheimer's disease or vascular dementia cause a decline in cognitive abilities over time. In such cases, periodic assessments may be necessary to track changes in mental capacity and provide appropriate care and support.

4. Legal and financial matters:

Mental capacity assessments are often conducted in legal and financial contexts to determine an individual's ability to make decisions related to their personal affairs, property, or finances.

If the person's capacity is in question, multiple assessments may be carried out to gather comprehensive and updated information over time.

5. Rehabilitation and recovery:

After a brain injury or stroke, individuals may undergo rehabilitation programs to regain cognitive abilities and functional skills. Multiple assessments can be conducted at different stages of the rehabilitation process to monitor progress, support the person to make their own decisions and to tailor treatment plans accordingly.

It's important to note that the need for multiple mental capacity assessments is determined on a case-by-case basis by MCA professionals.

Q: Who carries out mental capacity assessments?

A mental capacity assessor will usually be a Doctor, a health professional (clinical psychologist, occupational therapist, speech and language therapist, nurse) or a social care professional (social worker).

The professionals conducting mental capacity assessments may have different areas of expertise and training. For example, they may have a specialist clinical background in mental health services, learning disability or acquired brain injury.

It is important that there is a good fit between the client and their particular clinical needs, and the person who is assessing capacity. This ensures the appropriate support is given and the assessor can understand how the person’s difficulties might affect their decision-making skills.

Mental capacity assessments aim to evaluate an individual's ability to make informed decisions and engage in activities that align with their best interests and protect them from harm, regardless of the domain being assessed. Our MCA department continues to grow with a variety of assessments available throughout England and Wales. We have a range of professionals and experience within our assessors as no two assessments or clients are the same!

From setting up a Lasting Power of Attorney, to making a Will, to managing property and affairs, to marriage, sexual relations or to instruct solicitors in a claim for personal injury, we will work with you to establish exactly what is needed for your client. Please email MCA@circlecm.com to discuss your requirements.

Meet Maria Morris

Circle Case Management's multi-award-winning Expert Witness Panel is host to highly respected VRA Award winner Maria Morris, an Occupational Therapist, Vocational Case Manager and Expert Witness.

Where did it all begin?

My career started as an Occupational Therapist in 1989. Since then I have gained extensive clinical experience, at times managing an extremely varied caseload, working with clients who have suffered life-changing injuries and illnesses impacting physical or mental health.

I have worked with thousands of clients and in many organisations including Government, injured military personnel and employees of the royal household.

How did that lead to becoming an Expert Witness?

My first expert work assisting other Occupational Therapist Experts began around twenty years ago. I had suffered my own personal injury in the NHS caused by a faulty piece of equipment.

I was forced to change my career as a result. Using the funds I received from my personal injury claim, I set up a private practice. I wanted to help others overcome disability and injury.

As I understand what people go through with pain or ongoing health symptoms and I understand the frustrations that come with a personal injury claim. I resumed expert work with Circle Case Management following completing updated training with Bond Solon approximately two years ago.

Vocational Rehabilitation and Occupational Therapy – do they cross over?

I get asked often for a combination of the two expert reports!

Recent cases included people needing some of my specialist skills to provide an opinion of how best to manage visual impairment, brain injury, complex orthopaedic injury and complex regional pain syndrome.

Ages vary from a young adult at college, to adults who are working or looking to return to work plus those over retirement age still wanting to be active and live a purposeful life.

My reports help people have an increased sense of purpose and live a more meaningful enjoyable life after their injury or incident. For instance, someone with a brain and neck injury.

Client X. He was a new Father and was struggling as to how best to manage his symptoms of pain, fatigue, memory and multi-tasking needed at home and in his job. He was finding it challenging to stay in work and reduce arguments at home with his partner.

His case settled and I understand the majority of the recommendations made have now been implemented. Working more from home, adjustments to his workstation, work deadlines, regular contact with his manager, help with childcare, help with getting back to hobbies and knowing better how to manage fatigue.

Or a young man attempting to get into an apprenticeship with a visual impairment and dyslexia who needed emotional support to cope with his disability adjustment and some assistive technology to help him.

Or a retired woman who was very active not only suffering chronic pain from an arm injury but had several bereavements to cope with.

She needed help with added transport as she cannot drive and lived in a rural area. She now has case management to help her coordinate appointments for rehabilitation, complete administrative tasks and manage an extensive wild meadow and garden which is her lasting legacy to the local community.

My expert OT reports focus on care costs, following injury or incident, current needs and helping predict their future needs. To help people regain more functional independence for daily tasks, get added structure, activities or work into their week.

Occupational Therapist expert reports could be providing recommendations for equipment or support with things like reading or writing, gardening, general personal hygiene and care, meals, mobility at home or out in the community, socialising, maintaining a hobby, gardening, DIY and where they live.

Vocational expert reports could include how best to return to studies, adjustments needed to their computer, office or work environment, identifying what type of work they can do if it’s not the same after their injury or incident or even identifying voluntary work prior to paid work as a steppingstone to paid work.

It can include how their injuries has impacted on their finances or work potential or identify what hours of work they may be able to manage given their symptoms.

What would you say for anyone considering a career in Expert Witness services?

Get specific expert training. Read the rules required to be an expert.

Each profession usually has advice or guidance as to how to be an expert or requirements. Bond Solon courses on how to be an expert witness and general expert report writing skills.

I am excited to be attending a new vocational expert specific course with Bond Solon. If anyone is interested get in touch with Circle Case Management on expert@circlecm.com, or Bond Solon directly.

What are your tips for becoming a successful Expert Witness?

My approach is to always think outside the box. Get creative in making an instant rapport with people so they relax and feel at ease. You get more useful information to write your expert reports that way.

Litigation can be a stressful process. It’s important to put people at ease. Talk to peers in the expert field already.

Work alongside another expert when starting out for a few cases to help them with a case to get an idea of what’s needed.

Help them with the research or costings even though they write the final report. Ensure you have a peer or colleague proofread reports, check any costs or complex material plus act as a sounding board for your opinions so you could justify them clearly if needed.

If you are questioned, stand in your expert power. Do not let anyone brow beat you. Back up your opinion with research and experience. Be willing to compromise if needed. Use a good ergonomic workstation station for your comfort.

Use voice dictation to save extensive typing or get administrative help to type reports in the correct format. Keep reports as short and succinct as possible.

If a solicitor, barrister or judge were to pick up the report with only 15-20 minutes to spare would they know where to find the information they need in each section easily? Or within a relevant appendix?

Break up the reports into text, tables and bullet points to ease reading. Have a clear and concise summary of your findings and opinions.Know your boundaries and skillset.

Only take a case if you feel competent to handle it. If you do not enjoy writing reports or doing the detailed work, then avoid doing expert work.

Expert work is not just about a perceived “easier way” to make money. It’s a highly skilled, responsible role and requires dedicated work. You need patience, perseverance, and accuracy.

Finally, remember the quote by Helen Hayes “The Expert at Anything was once a beginner” so don’t be afraid of trying it out to see if it works for you.

And avoid the quote by Colin Powell who says, “Experts often have more data than judgement”.

What are your tips for becoming a successful Expert Witness?

My approach is to always think outside the box. Get creative in making an instant rapport with people so they relax and feel at ease. You get more useful information to write your expert reports that way.

Litigation can be a stressful process. It’s important to put people at ease. Talk to peers in the expert field already. Work alongside another expert when starting out for a few cases to help them with a case to get an idea of what’s needed. Help them with the research or costings even though they write the final report.

Ensure you have a peer or colleague proofread reports, check any costs or complex material plus act as a sounding board for your opinions so you could justify them clearly if needed.If you are questioned, stand in your ex-pert power.

Do not let anyone brow beat you. Back up your opinion with research and experience. Be willing to compromise if needed.

Use a good ergonomic workstation station for your comfort. Use voice dictation to save extensive typing or get administrative help to type reports in the correct format.

Keep reports as short and succinct as pos-sible. If a solicitor, barrister or judge were to pick up the report with only 15-20 minutes to spare would they know where to find the information they need in each section easily? Or within a relevant appendix? Break up the reports into text, tables and bullet points to ease reading. Have a clear and concise summary of your findings and opinions.

Know your boundaries and skillset. Only take a case if you feel competent to handle it.If you do not enjoy writing reports or doing the detailed work, then avoid doing expert work.

Expert work is not just about a perceived “easier way” to make money. It’s a highly skilled, responsible role and requires dedicated work. You need patience, perseverance, and accuracy.

Finally, remember the quote by Helen Hayes “The Expert at Anything was once a beginner” so don’t be afraid of trying it out to see if it works for you. And avoid the quote by Colin Powell who says, “Experts often have more data than judgement”.

www.circlecasemanagement.com