The Importance of Appropriate Communication when Assessing Capacity
Zena Soormally specialises in Court of Protection work, here she highlights some specific issues when helping people on the autism spectrum:
"The majority of my work involves acting for individuals who lack capacity, their loved ones or advocates. Sometimes, my clients lack capacity and there is no disagreement about that fact, but sometimes there is disagreement and, when that happens, I am instructed to resolve it through negotiations with the decision makers, perhaps obtaining expert evidence or, as a last resort, seeking a declaration from the Court of Protection
.""My clients have faced a particular issue with regards to assessments of capacity for those on the autism spectrum which I feel it appropriate to highlight."
"As the name suggests, it is a spectrum condition; there are some common difficulties that autistic people will share, but it will not affect all of them in the same way. In my experience, two of the key areas of difficulty for Autistic people, as is relevant to assessing capacity, are their difficulties with social communication and social interaction; two of the so called “triad of impairments”
. Those difficulties are directly relevant to any assessment of capacity because, in order for a person to be found to have capacity under the Mental Capacity Act 2005 (MCA)
, they must, amongst other things, be able to understand the information relevant to a decision, and able to communicate their decision."
"Under the MCA a person has to be supported to have capacity. Under section 3(2) it is made clear that a person must not be regarded as unable to understand the information relevant to a decision, if he is able to understand an explanation of it “given to him in a way that is appropriate to his circumstances”
. The examples given in that section are of using simple language, visual aids or any other means. For autistic people this is of real importance as, without the correct communication aids or environmental circumstances, a person could be found to fall below the threshold of capacity for the wrong reasons."
"There are a great number of ways to assist autistic people, as well as others with communication difficulties, to communicate more effectively. Experts are available to provide assessments and guidance on what might help. You, as family, friends, carers and advocates, are a wonderful source of knowledge and information and should be involved and consulted in relation to any capacity assessment (as well as best interest decisions that might follow). If you are not and you think that has resulted in an incorrect decision, you can seek our assistance to remedy that error.""As well as the MCA, there is a wealth of statutory and non-statutory guidance that can help professionals to conduct lawful assessments of capacity in these circumstances but, too frequently, we see assessments that are not completed in a sympathetic way, taking account of the needs of the individual concerned. We are here to help if you find yourself in that situation."