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Mental Capacity Assessment: When Is a Clinical Neuropsychologist Needed?
Assessing mental capacity can range from a relatively straightforward clinical judgement to a detailed examination of cognition, decision-making and functional ability.
Not every capacity assessment requires a clinical neuropsychologist. In many cases, an appropriately trained health or social care professional can answer the relevant question perfectly adequately.
The position can be different where capacity is disputed, the decision is particularly significant, or there is known or suspected brain injury, neurological disease or cognitive impairment. In these circumstances, a specialist neuropsychological assessment can provide objective evidence about the cognitive abilities underlying the person’s decision-making.
For solicitors, deputies and other professionals, the question is therefore not simply “Who can assess capacity?”, but sometimes “What level of assessment is proportionate to the complexity and potential consequences of this particular decision?”
Capacity Is Decision-Specific
Under the Mental Capacity Act 2005, capacity is assessed in relation to a particular decision at the time that decision needs to be made.
A person should not be regarded as lacking capacity simply because they have a neurological diagnosis, cognitive impairment or make a decision that others consider unwise.
They must also be given appropriate support to make the decision wherever possible.
The assessment considers whether, because of an impairment or disturbance affecting the functioning of the mind or brain, the person is unable to:
understand the information relevant to the decision;
retain that information for long enough to make the decision;
use or weigh the information as part of the decision-making process; or
communicate their decision.
Capacity may also change over time. A person may lack capacity for one decision but retain it for another, or their abilities may fluctuate according to their clinical condition.
This means that a capacity assessment should be designed around the specific decision being considered, rather than simply around whether somebody has a diagnosis or performs poorly on a cognitive test.
When Is a Straightforward Capacity Assessment Enough?
Many capacity assessments do not require formal neuropsychological testing.
For example, where the relevant information is relatively simple, the person's cognitive difficulties are already well understood and their ability to understand and weigh the decision can be demonstrated clearly, a proportionate clinical assessment may be sufficient.
A social worker, doctor, psychologist or other appropriately skilled professional may therefore be entirely suitable for many assessments.
The fact that a more detailed neuropsychological assessment is available does not mean that one is always necessary.
The difficulty arises when the answer is not straightforward.
When Can Clinical Neuropsychology Add Value?
A Consultant Clinical Neuropsychologist may be particularly useful where the capacity question sits within a more complicated cognitive or neurological picture.
Examples can include:
traumatic or acquired brain injury;
stroke;
neurodegenerative disease;
subtle or disputed cognitive impairment;
impaired memory or new learning;
executive dysfunction;
reduced processing speed or attention;
impaired reasoning or problem-solving;
disagreement between professionals or family members about the person’s abilities;
apparently inconsistent decision-making;
high-value property or financial decisions;
capacity to conduct litigation; and
cases where the assessment may subsequently be scrutinised or challenged.
In such cases, the clinically important question may extend beyond whether the person can repeat relevant information during an interview.
It may also be necessary to understand how effectively they process, retain, manipulate and apply that information when making a decision.
The Difference Between a Capacity Interview and a Neuropsychological Assessment
A capacity assessment remains focused on the decision required by the Mental Capacity Act.
Neuropsychological assessment provides additional evidence about the cognitive processes that may affect that decision.
For example, a person may appear to understand information while it is being explained but have significant difficulty retaining it after a delay. Another person may recall the relevant facts but have executive difficulties affecting their ability to compare alternatives, appreciate consequences or apply information consistently to their own circumstances.
Formal assessment can examine areas including:
memory and learning;
attention;
information-processing speed;
executive functioning;
reasoning and problem-solving;
language; and
other aspects of cognitive functioning relevant to the individual case.
The aim is not to substitute a test score for the statutory capacity test. Instead, cognitive assessment can provide a contemporaneous and structured evidence base for understanding why a person may or may not be able to make the particular decision in question.
Why Might This Matter if Capacity Is Later Challenged?
Some capacity decisions are unlikely ever to be disputed.
Others may eventually be considered in correspondence between solicitors, expert discussions, the Court of Protection or other legal proceedings.
In a complex case, a detailed assessment can provide a record not only of the assessor’s conclusion but also of the individual’s cognitive functioning at the relevant time.
That may be particularly useful where there are questions about:
whether cognitive impairment was present;
which aspects of cognition were affected;
whether difficulties were clinically significant;
whether the person's presentation was consistent across different sources of evidence;
the relationship between identified cognitive difficulties and the functional components of the capacity test; and
whether capacity might change with treatment, rehabilitation, additional support or the passage of time.
A neuropsychological assessment provides additional evidence where the complexity of the case makes that evidence clinically and legally useful.
Capacity to Conduct Litigation
Capacity to conduct litigation is one situation in which specialist assessment may be particularly important.
The person must be able to engage sufficiently with the conduct of the proceedings, taking account of the particular demands of the case.
Where there is significant or disputed cognitive impairment, neuropsychological assessment can help clarify abilities relevant to understanding, retaining and using information, considering advice and participating meaningfully in decision-making.
The assessment must still address the relevant legal test. Formal cognitive testing is supporting evidence rather than a replacement for that analysis.
For information about Dr Hunkin’s medico-legal work and direct solicitor instructions, see our Expert Witness Services for Solicitors.
Property and Financial Affairs
Questions concerning capacity to manage property and financial affairs can also involve considerable cognitive complexity.
Managing finances may draw on memory, numerical skills, planning, judgement, problem-solving and the ability to appreciate both immediate and longer-term consequences.
The sophistication of the assessment should reflect the circumstances of the individual.
Someone managing a relatively simple income and routine expenditure may face very different cognitive demands from somebody responsible for substantial assets, investments, property or complex financial arrangements.
A specialist assessment can therefore help identify the individual's actual cognitive strengths and weaknesses and consider them in the context of the financial decisions they are required to make.
Choosing the Right Assessor
The appropriate assessor depends upon the question being asked.
Where significant neurological or cognitive issues lie at the centre of a complex or disputed assessment, it may be important that the instructed professional has the specialist expertise needed to examine them.
Dr Vikki Hunkin is a Consultant Clinical Neuropsychologist with more than 20 years’ experience in the NHS and independent practice.
She holds the BPS Qualification in Clinical Neuropsychology (QiCN) and is listed on the BPS Specialist Register of Clinical Neuropsychologists. She also holds the Cardiff University Bond Solon Civil Expert Witness Certificate.
Her work includes complex capacity assessments where brain injury, neurological illness or cognitive impairment is relevant to the person’s ability to make a particular decision.
You can read more about Dr Hunkin’s specialist qualifications and experience here.
Does Every Complex Capacity Case Need Neuropsychology?
No. The level of assessment should always be proportionate to the decision, the individual’s presentation and the purpose for which the opinion is required.
There is little benefit in commissioning an extensive neuropsychological assessment when the relevant capacity question can be answered reliably without one.
However, where cognition is central to the case, the findings may be contested, or the consequences of the decision are substantial, specialist neuropsychological assessment can provide a considerably richer evidential basis for the capacity opinion.
The important question is therefore not whether neuropsychology is routinely required, but whether understanding the person’s cognitive functioning is necessary to answer the particular capacity question robustly.
Discussing a Potential Capacity Assessment
Dr Vikki Hunkin accepts capacity and medico-legal instructions from solicitors and other professional referrers across England and Wales.
Initial enquiries can include a brief summary of the capacity question, relevant diagnosis or injury, the purpose of the assessment and any applicable timescale or court deadline.
This allows consideration of whether specialist clinical neuropsychological assessment is appropriate and proportionate before an instruction is accepted.
For further information or to discuss a potential instruction, visit our For Solicitors page or Contact page.
This article provides general information about neuropsychological capacity assessment and is not legal advice. Capacity must be considered according to the circumstances of the individual case and the applicable legal framework.
