Capacity Assessments

A capacity assessment is not a mysterious clinical procedure — it is a structured conversation with a decision at its centre. Most are done informally many times a day by care staff: does this person understand what I'm offering, can they hold onto it long enough to choose, can they weigh it up, can they tell me their choice somehow? For bigger decisions — moving home, serious treatment, managing money — the assessment becomes more formal and is usually led by the professional proposing the decision, but the test is exactly the same.

Two habits make assessments fair. First, maximise the person's chances before you conclude anything: time of day, environment, communication aids, a familiar face. Second, stay decision-specific — the same person may lack capacity to manage their investments yet be entirely able to decide what to eat, who visits, and whether they want a flu jab.

And remember what an assessment is for: it is the gateway that protects the person's right to decide. Conclude "lacks capacity" too easily and you take away someone's voice; conclude "has capacity" carelessly and you may abandon someone to a decision they could not actually make. Both errors are serious — the discipline of the test is what keeps you honest.

• MCA 2005 sections 1–3: the principles and the two-stage test (impairment/disturbance + functional inability, with a causal link).
• Balance of probabilities: the standard of proof — more likely than not.
• Section 5: protects carers acting in connection with care or treatment where they reasonably believe the person lacks capacity and the act is in their best interests — reasonable belief needs a reasonable assessment behind it.
• Code of Practice chapter 4: who assesses and how; professionals must have regard to it.
• NICE guideline NG108 covers supporting decision-making and best-interests processes in practice.
• Disputes about capacity that cannot be resolved locally can go to the Court of Protection.

CQC looks for assessments that are decision-specific, dated, and show working — not tick-boxes concluding "no capacity" with empty comment fields. It expects staff to know when a formal assessment is needed, evidence that support to decide came first, involvement of speech and language therapy or advocacy where communication is the barrier, and reassessment when conditions change. A pile of identical assessments all concluding incapacity, all in the same handwriting, all on admission day, tells its own story — and not a good one.

• Frame it: write the decision down first. "Does Mrs A have capacity to decide whether to accept a key safe being fitted, today?"
• Prepare: what information is actually relevant to this decision? Keep it to the genuinely salient points — the courts warn against demanding more understanding from assessed people than the rest of us use.
• Support first: best time, quiet place, simple language, visual aids, trusted person present if the person wishes.
• Test the four abilities with open questions: "Can you tell me in your own words what this is about?" (understand), return to it a few minutes later (retain), "What would be good and bad about it?" (use and weigh), and accept any reliable means of communication.
• Check the causal link: if they can't decide, is that because of the impairment — or because of pain, fear, language, or your explanation?
• Record: the decision, when and where, who was present, support given, questions asked, the person's actual responses, your conclusion and reasoning, and a review trigger.
• If capacity is lacking, move into best interests properly — see the Mental Capacity Act topic, and try the walkthrough tool.

Example 1. District nurses want to start insulin for a man with vascular dementia; he keeps refusing. The senior carer who knows him best joins the nurse for an assessment after breakfast, his calmest time. Using a picture chart, he explains back: "Sugar too high, jab makes it right, or I get poorly." He retains it through a cup of tea, weighs it ("I don't like needles but I don't want hospital"), and agrees to try. Documented capacity, valid consent — and a refusal two months later will be assessed afresh rather than overridden by history.

Example 2. A woman with a brain injury says yes to everything asked quickly, and her file says "lacks capacity — agrees inappropriately". A new key worker slows everything down: one idea per sentence, choices offered as objects, answers checked by asking the opposite way. It turns out she can decide plenty when given time — the earlier blanket conclusion reflected the assessments, not her. Her plans are rewritten decision by decision.