For legal professionals, the evaluation of mental capacity can be problematic. A practitioner’s assessment of capacity needs to be robust enough to ultimately be accepted by the courts and, without the necessary clinical expertise, any interpretation could be challenged.
The highly nuanced nature of capacity adds a further layer of difficulty to the process – a client may be fully capable of making certain decisions but not others. What’s more, the Covid-19 pandemic has forced us to adapt to a virtual existence where we’re corralled behind computer screens, which makes the ability to conduct robust assessments even more difficult.
However, technology can also be our saving grace. New advancements in digital tools will facilitate the assessment process, create consistency across firms and ultimately ensure those most at-risk are supported.
Regulation and expectation
The Mental Capacity Act 2005 (MCA) became law to safeguard and empower those with diminished or impaired capacity. It was also designed to provide those in social care and ancillary professions with a framework to assess capacity accurately. If it’s determined capacity is lacking, practitioners have a framework to follow to determine next steps. Although the MCA was transformative when it came into effect, individual cases are still slipping through the net. It also needs to be remembered that although many decisions are covered by the MCA, there are still a number that fall outside of the framework – thus requiring assessors and solicitors to have a firm grasp of relevant case-law.
In 2015, the Solicitor’s Regulatory Authority (SRA) reiterated the need for more rigorous procedures when determining a client’s level of capacity. It’s estimated around 2 million people in the UK lack capacity due to a range of causes including dementia or brain injury. However, in spite of updates in regulation, the assessment of capacity is still deficient in some areas. The implication of capacity is nuanced; what is missing is a more holistic approach to assessments. An individual with dementia or severe mental illness may appear to lack the capacity to make some decisions but have total clarity when it comes to others such as the handling of their estate. Ruling these individuals out due to their condition could be depriving them of aspects of their free will that they are competent to exercise.
Pioneering technology
Legal firms need a reliable way of identifying reduced capacity of clients at all stages of their journey, which takes into account the many facets of their condition.
Comentis’ Cognitive Assessment Engine (CAE) is a first for the legal services market, providing a clinically based assessment so that firms can easily identify reduced mental capacity among clients. Conceived and developed in conjunction with mental health experts and psychologists, Comentis’ software brings objectivity and consistency to a process that’s notoriously susceptible to subjectivity.
The CAE can be easily integrated into existing processes, and tailored to specific decisions such as testamentary or Lasting Power of Attorney. The application will ask a series of questions to assess whether a client has capacity to make the decisions they are making. If capacity is deemed impaired, the technology can establish the nature and cause of this and keep a record, which can be easily transferred to any compliance software through built-in application programming interfaces (APIs).
The change for legal firms
Developments in technology like Comentis’ CAE provide firms with a seamless, yet clinically-sound approach to assessing mental capacity – a process which is typically cumbersome and prone to human error. Firms shouldn’t have to deal with inefficiencies and bureaucracy just to demonstrate they’re not exploiting these at-risk clients.
Not only is ethical peace of mind and greater efficiency provided by this technology, but a reputation for responsible practice will also be a secondary benefit. Direct clients and wider circles will recognise firms with a commitment to their wellbeing as reliable, encouraging a more positive perception of the company as a whole.
The benefits of this new technology in assessing mental capacity are clear. What is not clear is the outcome of firms unwilling to take on technology changes to their risk assessments. Even the firms with the most robust manual procedures for identifying reduced capacity are still less efficient and susceptible to human error. Even more self-detrimental would be the practice of limited assessment. Ultimately, this would lead firms down a path of obsolescence.
Tim Farmer is Clinical Director and Co-Founder at Comentis
