How Perceptions of Mental Health and Capacity Are Changing the Legal World
In this next interview, we speak with one of the leading experts in mental capacity; Tim Farmer is devoted to ensuring that the individual is at the heart of everything he does, resulting in the main principle for assessing mental capacity at his firm TSF Consultants. Tim says: “We believe that people should be treated with Compassion, Knowledge and Empathy.
“I love the phrase from ‘Horton Hears a Who’ (Dr Seuss): “A person is a person no matter how small”. Lose sight of that and you lose sight of the purpose of the assessment.”
In this insightful interview, he shares how perceptions towards mental health has changed, aspects the Mental Capacity Act does not address and how the Court of Protection has changed to enhance the legal system.
How have you seen perceptions towards mental health change over the years? How has this affected the changes legal cases have undergone over the years?
When I started out, over 20 years ago, mental health was still seen very much as something to be hidden away by those outside of the profession.
I remember back in 2001, when helping a patient apply for a job, I noticed on his application he had written he had been in prison for robbery rather than saying he had been in the mental health hospital. I asked him why he had done this, and he replied: “I am more likely to get the job if I say I have been in prison for robbery than I am if I admit to having depression”. Since then I am pleased to say that perceptions are changing but I feel there is still a long way to go.
It is important that we separate out mental ill-health and mental incapacity as the two are not synonymous. The advent of the Mental Capacity Act (2005) has provided a more formalised framework from which to assess capacity. The resulting establishment of the Court of Protection has had a huge impact on legal cases and created a whole new area of legal expertise. It is still a relatively new and exciting area of law and everyday sees a new judgement that affects how we should interpret and work with the Act and other relevant case law.
What stages do you undergo when assessing the mental capacity of a client? What challenges arise during this time?
Following the Court of Protection rulings and drawing on our vast experience we have created new practice standards. My company, TSF Consultants (TSF) prides itself on performing assessments in a standardised format and as part of this, we have developed a four-stage process to a support a key component of any assessment – the threshold of understanding. It is known as the CMSL principle (Concept, Mechanics, Short Term, Long Term).
But before we get to that, the first step of any assessment is to identify the specific decision to be assessed in order to define the best test to use. This is essential, as the test used to assess capacity is dependent on the specific decision being assessed. The more specific you can be about the question the better. You can then go about setting the threshold of understanding, i.e., what a person needs to understand, retain, weigh up and use to be able to make the decision in question.
For many decisions (such as litigation or making a Will) the threshold of understanding is set out in the relevant case law. The real difficulty for assessors seems to arise when decisions come under the Mental Capacity Act. The Act doesn’t cover all areas of decision making, but it’s mainly a framework stating a person must be able to:
- Understand relevant information,
- Retain relevant information,
- Weigh up and use relevant information, and
- Communicate their decision.
What the Act doesn’t do is tell us what the ‘relevant’ information is. Subsequent caselaw instructs us that we mustn’t set the bar too high or low, but it rarely tells us what that bar is. This is where CMSL has proven very useful.
We’ve been able to create a framework that allows us to set the threshold for each area, based on what you would expect the average person to understand for each. Our system allows us then to identify which questions to ask and how we expect the information to be presented back.
The last step, often missed by many assessors, is validation (of the information provided); a person can say anything in an assessment and what a good assessor should do is always verify and validate the information they provided, before making a final decision.
I will always remember as a student nurse I went on a home visit to see a lady with schizophrenia who lived in a run-down bedsit. She was incredibly upset that she hadn’t received an invite to a certain royal wedding. My mentor at the time, brushed over this as part of her illness. It turned out that she was supposed to attend but the invite had somehow got lost. From that moment on I have always insisted on verifying information where possible before making a judgement.
What could those facing litigation have done to avoid such situations?
Many people try to short cut or reduce costs by using their GP or a person that is not specialist in the area of mental capacity. In my experience this usually results in poor assessments and wrong outcomes that then result in challenges and increased costs as they attempt to put them right.
What challenges did you face as the first mental health nurse to have evidence accepted by the Court of Protection? How did you overcome them?
When I first started as an expert witness specialising in Mental Capacity, a colleague of mine said to me: “Tim, I’m a Consultant Psychiatrist and therefore the Gold standard, you are only a nurse and therefore, at best, will only ever be bronze.” That very much summed up the attitude at the time!
A key moment was finding someone who was willing to put my evidence before the Court (thank you Ron Hiller). Overtime, it has become more acceptable for non-medical professionals to have evidence accepted by the Court, although there are still some people who believe Mental Capacity should be the sole domain of the doctor.
I believe the quality of the work we produce and the education we provide to those we meet and work with will help overcome this kind of attitude. I also think that having an award-winning book, number one on Amazon in the UK and US helps: http://amzn.eu/4PEI6la .
Over the years have there been any significant changes to the Court of Protection which have enhanced the legal system?
For me the acceptance of evidence from different professions, along with the greater inclusion of those with reduced capacity, have been key. I believe that this has resulted in better, more accurate evidence being presented before the courts which ultimately results in better outcomes for the individual’s concerned.
As a member of Baroness Finlay’s leadership team for the National Mental Capacity Forum, we are seeing a lot of good practice and a real drive across all areas to embed the principles of the mental capacity act in day to day practice. I think that this will necessarily see a knock-on effect for the cases that are presented to the Court in terms of processes followed and the quality of evidence that they receive.
We also find ourselves in the middle of a Law Commission review of Wills and within that, whether Banks v Goodfellow remains the best test for testamentary capacity. I get the feeling there is a real drive to make the Mental Capacity Act (2005) the new framework for assessing testamentary capacity. My personal opinion is that it should change but I am wary of ‘throwing the baby out with the bath water’. One of the things I love about Banks v Goodfellow (1870) – and indeed all common law tests for capacity – is that they clearly set the threshold of understanding for the specific decision in question. I honestly believe that if I were to set out the threshold of understanding for testamentary capacity under the MCA it would pretty much mirror that, as currently set out in the ruling of Banks v Goodfellow.
Having said that, I do believe it is time for a change. To my mind there exists a dichotomy between assessing testamentary capacity using Banks v Goodfellow and then, having to present evidence to the Court of Protection for a Statutory Will in terms of the Mental Capacity Act. I also believe that some of the language used in the ruling of Banks v Goodfellow is out dated and it needs to reflect the many changes that have occurred since 1870!
You have been described as “The Guru of Mental Capacity” – what key characteristics do you think account towards this?
I think one of the key characteristics is always keeping the individual at the centre of what we do.
I believe there should be a recognised standard in place for mental capacity assessment and I’ve been asked to participate in various developments for the protection of the individual.
I also believe in knowledge and the willingness to share insights and understandings. Mental Capacity is a relatively new area of expertise and we are all learning all the time.
TSF focuses solely on Capacity Assessment, we believe in focus and understanding and instead of offering multiple services we chose to specialise for the benefit of the individual.
This has allowed us to develop a greater level of insight than most in the Mental Capacity field.
The “guru” reputation comes from being proactive and at the forefront of innovation. To keep this reputation, with TSF, I am developing a training academy for professionals interested in making a difference in the world and learning all the intricacies of assessing mental capacity… always with the individual in mind.
Tim Farmer
TSF Consultants
1st Floor, R & R House,
West View, Paganhill Lane,
Stroud, Glos,
GL5 4JP
0333 577 7020
info@tsfconsultants.co.uk
www.tsfconsultants.co.uk
Established in 2011 TSF Consultants are recognised as the leaders in the provision of mental capacity assessments and were awarded the coveted title of Mental Capacity Assessor – firm of the year 2017 by Lawyer monthly.
We believe that every individual is a person and that every person has the right to be the best that they can be and should be treated with respect and dignity at all times. Through our core values of empathy, compassion and knowledge we ensure that everyone is treated with respect and dignity and supported to achieve their optimum.
Our founder Tim Farmer is acknowledged as one of the UK’s leading experts in the assessment of mental capacity. He is a registered mental health nurse with over 20 years’ experience of working with individual’s with reduced capacity and was named as Expert witness (Mental Capacity) 2016. He is a best-selling author on the assessment of capacity and is also a member of Baroness Finlay’s leadership team for the National Mental Capacity Forum, a national committee member for CoPPA (Court of Protection Practitioners Association).
