How tech will transform the way private client practitioners undertake mental capacity risk assessments

 In Elderly/Vulnerable Client

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Tom FarmerThe fallout from the COVID-19 pandemic is something that we’ll be reckoning with for years to come. Its toll on lives and livelihoods has been immense, and even now the path through to the so-called ‘new normal’ is shrouded in uncertainty. Amid the turmoil, perhaps the biggest silent tragedy has been that of a decline in mental health. Symptoms of depression, anxiety and other potentially debilitating conditions have almost doubled in the UK during the pandemic, with many reporting feelings of fear, isolation and stress.

Such conditions are treatable, and in some cases temporary, but they can lead to impaired judgement and an inability to make important life decisions. and it often falls to financial and legal institutions to exercise a duty of care over their clients and take action when s circumstances contrive to deprive an individual of the mental capacity to make an important call about their future – and the pressure is mounting. Just this year, the Financial Conduct Authority (FCA) published guidance on the fair treatment of vulnerable customers, in which it outlined that financial advice firms should take action to understand and assess the needs of vulnerable clients, including those that lack capacity. The FCA also introduced a new ‘breathing space’ regulation to shield indebted financially vulnerable customers and those with reduced mental capacity. In this instance, the government delivers the instruction on each individual customer to the business so there’s no assessment involved, but this coupled with the FCA’s guidance are signs of how tightly pressure is ratcheting up around these industries to take reduced mental capacity and duty of care more seriously.

The pressure facing private law practitioners

In 2015, the Solicitor’s Regulatory Authority (SRA) highlighted the need for the legal services industry to do more to ensure that vulnerable customers and those that lacked mental capacity, were identified and appropriately supported. More recently, the SRA has spoken out in support of the FCA’s measures around duty of care to the vulnerable and has stated it will now consider client vulnerability when investigating practitioner misconduct. It’s estimated that over 2 million people in the UK lack the mental capacity to make an important decision at any given time. With the FCA and SRA increasing their focus on the identification and support of vulnerable and reduced mental capacity clients, it’s never been more vital for practitioners to make the right call when it comes to assessing a client’s ability to engage.

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It’s not just regulatory pressure facing private practitioners either. There’s mounting pressure on businesses in all sectors to make sure their values are aligned with their ESG (Environmental, Social & Governance) goals and CSR (Corporate Social Responsibility) initiatives. Almost one-third of all adults say they’d rather engage with a service that can demonstrate its own values rather than simply pay lip service to them.

All of this points to practitioners needing a more accurate and reliable process when it comes to assessing mental capacity. Ideally, one that can be benchmarked, repeated and held as a record that a firm or individual practitioner has not only done their due diligence but gone above and beyond to proactively identify any at-risk customers. To date, this has been an entirely subjective process that varies greatly – perhaps too greatly – from practice to practice. Now, for the first time, that all might be about to change thanks to new pioneering clinical technology.

How technology is transforming capacity risk assessments

In an industry first, Comentis has pioneered a Cognitive Assessment Engine (CAE) designed to support the legal services market to make more accurate capacity risk assessments. Developed with input from mental health experts and psychologists, the software brings objectivity, scalability and consistency to an otherwise cumbersome and inaccurate manual process, allowing practitioners to better mitigate their own risks while also protecting clients with reduced capacity.

What’s more, the CAE can be easily integrated into a practitioner’s existing advice processes and is tailored to assess specific decisions such as testamentary capacity or capacity to make an LPA (lasting power of attorney). Using a benchmarked and scalable cognitive assessment can help firms and practitioners to identify health and life issues, personal resilience, stress levels and more. This record can be easily fed back to any compliance software through built-in application programming interfaces (APIs), giving practitioners complete peace of mind as they strive to put their clients’ health and wellbeing above all else.

With mental health currently high in the public conscience and instances of vulnerability sadly on the rise, it’s never been more important for those in legal services to exercise a duty of care when dealing with clients. Thanks to pioneering technology like Comentis’ CAE, practitioners will be able to deliver that duty of care effectively in a way that helps clients with reduced capacity but also mitigates any risk that outdated, monolithic processes once exposed to them too.

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