Assessment of Mental Capacity

1. Assessment of Mental Capacity Encompassing good practice and the law

3. Objectives: ��Describe some of the research into witness recall and explain it�s relevance to good practice in interviewing �������Describe how interviewer contamination can occur, and explain measures to avoid it �������Weigh up the information from a capacity assessment to arrive at a decision as to whether the person has capacity or not in relation to the relevant decision �������Use an approach to assessing capacity which accurately establishes the person�s understanding and their decision. �������Distinguish between incapacitated preference and capacitated choice �������Identify when other services may be useful when people are making capacitated yet risky or dangerous decisions

4. Common Misunderstanding Memory stores information perfectly. Memory is highly selective, encoding and storing only certain elements (Magner, 1995; Roediger & Gallo, 2002). Trivial details of events are as well remembered as important details. Details which are central to an event are much more likely to be recalled than events which are peripheral (Christianson & Loftus, 1991; Dutton & Carroll, 2001; Frost, 2000; Frost & Weaver, 1997; Orbach & Lamb, 2001; Patel, 1997).

5. Retrieval of information from memory is complete and accurate. Memories can be distorted in many ways during the retrieval process, such as with leading questions (Miller & Loftus, 1976; Roebers & Schneider, 2000; Toland, Hoffman, & Loftus, 1991) and suggestion (Eisen, Quas, & Goodman, 2002; Roediger & Gallo, 2002) (Chandler & Fisher, 1996; Geiselman, Fisher, MacKinnon, & Holland, 1987; Multhaup, de Leonardis, & Johnson, 1999). Forgetting is usually the result of an inability to recall information, rather than a failure to store it. Much of what is commonly believed to be �forgetting� is more accurately portrayed as a failure to encode the information to begin with. For example, Nickerson and Adams (Nickerson & Adams, 1982) found that less than 10% of individuals could correctly identify all 8 features on the penny. (See also Frost & Weaver, 1997.) Question: which way does the Queen face on a coin?

6. Refreshing recollection produces unbiased memories. When suggestive techniques are used to �refresh� memory, they often have the effect of creating memories for events that never transpired (Eisen et al., 2002; Hyman & Loftus, 1997, 2002; Loftus & Mazzoni, 1998; Loftus & Pickrell, 1995; Mazzoni, Loftus, Seitz, & Lynn, 1999;Weingardt, Loftus, & Lindsay, 1995). bed, rest, awake, tired, dream, wake, snooze, blanket, doze, slumber, snore, nap, peace, yawn, drowsy Memories are stable over time. Memory changes over time as the result of a number of factors such as retrieval context, newly acquired information, and misinformation presented after the original event (Anderson, Cohen, & Taylor, 2000; Koriat, Goldsmith, & Pansky, 2000).

7. When remembering episodes and facts, we retain the source of the information as well as the content. The phenomenon of �source confusion� exerts powerful effects on eyewitness reliability (Dobson & Markham, 1993; Dodson & Johnson, 1993; Mitchell & Zaragoza, 2001). Witnesses often retain the content of newly learned information, but they misattribute the source (Ceci, Loftus, Leichtman, & Bruck, 1994; Zaragoza & Lane, 1994). In the previous list, was the word sleep at the beginning or the end? Confidence is a reliable indicator of accuracy in eyewitness memory. The relationship between confidence and accuracy in eyewitness memory is modest at best (Kebbell & Wagstaff, 1997; Penrod & Cutler, 1995; Perfect & Hollins, 1999; Read, Lindsay, & Nicholls, 1998; Winningham & Weaver Iii, 2000). Factors influencing eyewitness confidence and eyewitness accuracy are not necessarily the same (Wells, Olson, & Charman, 2002); as a result, questioning practices can inflate confidence without improving accuracy. Memory distortion reflects failures to identify the sources of mental experience (reality monitoring failures or source misattributions). For example, people sometimes confuse what they inferred or imagined and what actually happened, what they saw and what was suggested to them, one person's actions and another's what they heard and what they previously knew, and fiction and fact. Source confusions arise because activated information is incomplete or ambiguous and the evaluative processes responsible for attributing information to sources are imperfect. Both accurate and inaccurate source attributions result from heuristic processes and more reflectively complex processes that evaluate a mental experience for various qualities such as amount and type of perceptual, contextual, affective, semantic and cognitive detail, that retrieve additional supporting or disconfirming evidence, and that evaluate plausibility and consistency given general knowledge, schemes, biases and goals. Experimental and clinical evidence regarding cognitive mechanisms and underlying brain structures of source monitoring are discussed.Memory distortion reflects failures to identify the sources of mental experience (reality monitoring failures or source misattributions). For example, people sometimes confuse what they inferred or imagined and what actually happened, what they saw and what was suggested to them, one person's actions and another's what they heard and what they previously knew, and fiction and fact. Source confusions arise because activated information is incomplete or ambiguous and the evaluative processes responsible for attributing information to sources are imperfect. Both accurate and inaccurate source attributions result from heuristic processes and more reflectively complex processes that evaluate a mental experience for various qualities such as amount and type of perceptual, contextual, affective, semantic and cognitive detail, that retrieve additional supporting or disconfirming evidence, and that evaluate plausibility and consistency given general knowledge, schemes, biases and goals. Experimental and clinical evidence regarding cognitive mechanisms and underlying brain structures of source monitoring are discussed.

9. Children�s memory for events is usually as reliable as adult recollection. Children are more susceptible to suggestion, fantasy, perceived demand characteristics, and source confusion � so too vulnerable adults. (Goodman et al., 1999; Gordon, Baker Ward, & Ornstein, 2001; Holliday, Douglas, & Hayes, 1999; Lindberg, Jones, McComas Collard, & Thomas, 2001; Poole & Lindsay, 2001). Memories which are otherwise inaccessible can be retrieved through processes like hypnosis. Hypnotically refreshed testimony is widely acknowledged to be unreliable (Atkins, 1985; Buckhout, Eugenio, Licitra, Oliver, & Kramer, 1982; Ducheny, 1997; Graham & Kabacy, 1990; Ready, Bothwell, & Brigham, 1997).

10. Emotional events are always better recalled than normal events. The relationship between emotion and memory is not linear. Rather, both extremes of the emotional continuum tend to reduce the number and accuracy of memories (Christianson, 1992; Christianson & Hubinette, 1993; Dutton & Carroll, 2001; Loftus, Loftus, & Messo, 1987; Shaw & Skolnick, 1999; Yerkes & Dodson, 1908). Careful witnesses can eliminate the possible effects of suggestible questioning. Clear warnings about possible misinformation do not always eliminate their effects (Ghetti & Goodman, 2001; McDermott & Roediger, 1998;Weingardt et al., 1995). Here�s an experiment to prove it�

11. You will now be participating in a psychology experiment, where I will be testing your ability to retrieve memory. You can withdraw from the experiment at all stages and I will debrief you at the end. Your participation will be anonymous. Please do provide me with individual answers � talking should be avoided. I will show you the next slide for one minute, after which I will hand you a short questionnaire.

13. Please answer the questionnaire

14. Why do you think the results occurred as they did?

15. Break Time

16. Mental Capacity Act 2005 The five principles (1) A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise

17. Mental Capacity Act 2005 The five principles (2) The right for individuals to be supported to make their own decisions� - people must be given all appropriate help before anyone concludes that they cannot make their own decisions

18. Mental Capacity Act 2005 The five principles (3) Individuals must retain the right to make what might be seen as eccentric or unwise decisions

19. Mental Capacity Act 2005 The five principles (4) Best interests � anything done for or on behalf of people without capacity must be in their best interests

20. Mental Capacity Act 2005 The five principles (5) Least restrictive intervention � anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms

21. Mental Capacity Act 2005 Who can make the assessment? Whoever is making the intervention �the person who has professional accountability for a decision relating to an individual who may lack [mental] capacity must be identified, and it is that person who must undertake the mental [capacity] assessment� per Mental Capacity Act Manual � 1-029, page 17. Decision Specific One can never make a general decision of mental in-capacity Remember it is a rebuttable presumption � you have to prove he/she does not have mental capacity.

22. Mental Capacity Act 2005 Mental In-Capacity There must be an impairment of, or a disturbance in, the functioning of the mind or brain (Section 1(2)) Is a legal matter, not merely a clinical one A declaration can be sought from the court of protection and must be sought in some circumstances There can be differences of opinion There can be ethical issues�

23. Mental Capacity Act 2005 Mental Capacity Can they communicate? Remember principle 2 AK (Adult Patient) (Medical Treatment: Consent), Re [2001] 1 FLR 129 The blinking of an eye was sufficient communication for mental capacity to be found. Does he or she require a speech and language therapist? What if the patient/service user refuses to communicate?

25. http://news.bbc.co.uk/1/hi/world/europe/8375326.stmhttp://news.ninemsn.com.au/world/975121/belgian-coma-man-was-just-awake-for-23-years

26. Mental Capacity Act 2005 Mental Capacity Can they understand the information? - how are you providing the information? R v MHA Commission ex parte (1998) 9 BMLR 77 � the patient need not understand the complex physiological nature of the intended intervention, merely the effects � ultimately a question of professional judgment. See also Sidaway and Bolitho cases

27. Mental Capacity Act 2005 Mental Capacity Can they retain that information long enough to arrive at a decision? This is a short period only. Prof Margolis: �patients only retain 50% of the information provided to them; of which a further 50% is misunderstood; an equally disturbing number of people forget their own diagnosis�� - what did you learn from the previous session?

28. Mental Capacity Act 2005 Can they use and weigh that information? Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819 � a paranoid schizophrenic could refuse life saving medical treatment despite delusions of grandeur. However� Are they �impervious to reason� or is there �an impossibility of adjustment following a period of reflection� Re MB (an Adult: Medical Treatment) [1997] 2 FLR 426

29. Re-cap: Mental In-Capacity There must be an impairment of, or a disturbance in, the functioning of the mind or brain (Section 1(2)) Can they communicate? Understand the information you�re providing? Can they retain that information? Are they able to use and weigh the information?

32. Capacitated Choice �the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it would be better for him to do so, because it will make him happier, because in the opinions of others, to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him�but not for compelling him or visiting him with any evil in case he do otherwise.� � the inviolability of autonomy

33. Incapacitated Preference The MCA is moving towards a substituted judgement model, yet agreement between decisions made by patients and their relatives is generally poor, with patients receiving far more treatment than desired. A systematic analysis by Shalowitz and colleagues showed that overall, surrogates predicted patients� treatment preferences with only 68% accuracy. In other words, patient-designated and next-of-kin surrogates incorrectly predict patients� end-of-life treatment preferences in one third of cases. These data undermines the claim that reliance on surrogates is justified by their ability to predict incapacitated patients� treatment preferences.

34. Other Services A speech and language therapist? An interpreter required? Is an MHA assessment required? Would a section 12 approved AC/RC assist? Would a psychologist assist? Remember that it is your assessment. Other professionals are there to assist you but it is the decision maker�s responsibility to perform the assessment.

35. Mental Capacity Act 2005 Lasting power of attorney Appointed deputy Advance decisions IMCA Criminal offence of wilful neglect

36. Mental Capacity Act 2005 Now a little role play�

37. Mental Capacity Act 2005 Questions?