Mental Capacity Act and DoLS

Factors relevant to the approaches to assessing capacity

Assessing capacity requires a multifaceted approach. There are number of factors we have observed to be relevant when determining the best approach for an assessment of capacity:

• Diagnosis.
• How loss of capacity arises or manifests.
• Predictability e.g. specific periods or changeable depending on the situation.
• Current presentation.
• Relevant information to be considered under each domain e.g. care, residence, contact.
• Regularity of decisions e.g. how often.
• Workability of solution: is a long and arduous process required to consider whether the person lacks capacity in the given moment dependent on place, time, duration etc.? If so, it may be better to make a declaration that the person lacks capacity.
• Protection of the person’s autonomy (interference to the minimum degree necessary to ensure safety).

Tips for producing a robust capacity assessment

1. Decision specific: Identify the specific decision to be assessed.
2. Timing: Assessments should be conducted at the time the decision is to be made. However, the timing of the assessment itself is important and should, if possible, be conducted when best suited to the service user.
3. Formality: The documentation should be formal and there is a need to tell people that their capacity is being assessed but the style or approach may need to be less formal or at least flexible and tailored to the person whose capacity is being assessed.
4. Engagement: Take all practicable steps to ensure that every effort is made to assist the person to engage with the assessment e.g. simple words, support from a carer to ask questions, Makaton, time of day, location, visual aids, story boards.
5. Non-engagement: Is the person unwilling or unable to undergo a capacity assessment? What can be changed to aid engagement? It is not possible to force someone to undergo an assessment and, in such cases, it may be appropriate to rely on triangulating evidence to come to a reasonable belief as to whether person lacks capacity. In such situations an application to the court may well be necessary to make the ultimate decision. If this situation arises, please do get in touch with our Court of Protection lawyers who are experienced in advising on capacity assessments and Court applications.
6. Recovery: consider whether there is any prospect of the person regaining capacity and whether the decision could be safely postponed until the person can make it themselves.
7. Relevant information: The information to be discussed with the person varies depending on the nature of the decision to be made. Please get in touch with us for specific guidance on the relevant information for each capacity domain.
8. Ask open ended questions. 
9. Tangible options: Ensure concrete details can be given of any options available (e.g. living in a care home vs living at home with a package of care).
10. Executive function: Consider real-world evidence of their ability to plan, organise and initiate actions.
11. Evidence base: Gather information from people who know the person well to gain an insight into the person’s decision-making patterns and abilities. Consider the broader context of the decision making.
12. Identify the salient factors where there is an assessment that the person lacks capacity. The best assessments will identify specifically what aspect the person could not understand, comprehend, weigh up, retain or communicate in relation to the particular decision.
13. Conclusion: state your conclusion as to whether the individual has capacity to make specific decisions, and the reasons.
14. Document: the assessment (including the questions asked and the person’s responses) on the appropriate form. E.g. capacity assessments are to be documented on a COP3 form for the Court of Protection.