Who assesses capacity?
In a health and care context the assessor is likely to be a social worker, nurse, doctor, psychologist or other professional involved with the person’s care. The assessor must have a good understanding of the information that is key to the decision that needs to be made, so they can explain it to the person. For instance, a doctor assessing whether a person can decide to take a type of medicine will need to know the advantages and disadvantages of the medicine, and the consequences of deciding to take it or not take it, so they can explain this to the person.
Each capacity assessment relates to a specific decision, because a person might have capacity for one decision but not for another. For that reason, the same person might have more than one capacity assessment with more than one assessor. For example, a social worker may be assessing whether the person can decide about moving to a care home. The social worker will know the information relevant to the decision about whether to move; they may not know the information relevant to a decision about medical treatment, so a separate assessment of capacity will be needed about that treatment, from someone who understands more about the treatment decision, such as a doctor.
An assessor might ask the person’s friends and family about them in advance, to help them make their assessment. For example, the assessor might ask about the best ways of communicating with the person, or the ideal time to speak to them. The assessor might ask for help to communicate with the person, such as from a speech and language therapist, or sign language specialist.
Where is capacity assessed?
The assessor will usually meet the person face to face. Sometimes a ‘virtual assessment’ such as by Zoom or Facetime is better. The person might be assessed on their own, or when supported by others if that makes them more relaxed. Support could come from anyone the person is comfortable with such as family or friends, or a professional such as an advocate or care worker.
Ideally the assessment should happen where the person is comfortable such as at home, or in a favourite room at their care home. The area should be private and free from distractions. Sometimes, there isn’t much choice about where and when the assessment happens if the decision is urgent, but the assessor should still think about what best suits the person in the circumstances.
When is capacity assessed?
Ideally, a capacity assessment should happen as soon as possible after it’s noticed that the person is struggling with making the decision that needs to be made.
The decision may be urgent, such as a decision about emergency housing or medical treatment, so an assessment will be needed right away. If the decision can wait, an initial assessment might be made and the decision delayed until more information, support and guidance can be given to help the person make the decision for themselves. A further assessment could be made later, to see if the person can now make the decision. Thought should always be given to the timing of an assessment and whether a decision can be delayed to a time that’s better for the person.
Sometimes people can make a decision on some days, or at some times, and not others because of their condition. This is often called having ‘fluctuating capacity’ because the person’s ability to make a decision changes. For people with fluctuating capacity, assessments might happen over days or even weeks to give a clearer picture of their capacity.
A capacity assessment is a ‘snapshot’ of whether a person can make a decision at a specific time. An assessment of capacity should be reconsidered when a new decision is needed, even if the decision is on the same topic, in case the person’s capacity has changed. The person themselves, or someone on their behalf, can ask for capacity to be reconsidered if they think something has changed.
Sometimes it can help if it is the same professional that assesses capacity each time an assessment is needed, but this might not always be possible. For example, because each assessment is decision specific it may not be possible for a social worker who previously assessed the person about decisions for care to also assess the person about decisions for medical treatment. The professional who is the most relevant to the decision to be made should make the capacity assessment, at the time the decision needs to be made.
How is capacity assessed?
The assessor will talk to the person. The assessor might need to check (for example) that the person has their hearing aid in, and their glasses on, before talking to them. The assessor might also need to use communication tools, such as pictures, to make sure the person can join in with the assessment. They will think about how the person responds to information the assessor gives them, and how they reply to questions the assessor asks. When making an assessment, the assessor will think about whether:
- The person understands the information relevant to the decision – the assessor should give the person enough information to make the decision, and give it to them in a way they can understand. This might mean breaking down complex information into ‘chunks’ or providing ‘easy to read’ written information. How much the person needs to understand depends on how complex or serious the decision is. The person should understand the reason the decision is needed, the effect of making the decision, or of making no decision at all.
- The person can retain the information – the person doesn’t have to retain the information perfectly or for a long period of time. The person should be able to remember the information long enough to make a decision. The assessor can check this by going back to the most important points throughout the discussion, or at the end.
- The person can use and weigh the information in coming to a decision – this can be the most difficult part of the assessment for the assessor because sometimes a person can understand information, but their mental impairment stops them using it to make decisions. The assessor will look for whether the person can apply the information to the decision and use it to make a choice.
- The person can communicate the decision – communication doesn’t need to be verbal, as long as the person can communicate in some way. The assessor should help the person to communicate, with support from specialists such as interpreters, or speech and language therapists if needed.
If the person is assessed as not able to do one or more of these four things (understand, retain, use/weigh, communicate) because of a mental impairment, then they will be assessed as lacking capacity for that decision at that time.
You can read our local capacity assessment template to understand more about how we record a capacity assessment.
What if there is a disagreement about capacity?
Sometimes there is disagreement about a person’s capacity. Everyone involved should try hard to resolve any differences. In difficult cases where no agreement can be reached, it might be necessary to apply to the Court of Protection for a decision on the person’s behalf. There are likely to be costs attached to going to court.
If you are not sure where to look for help with a concern about capacity, you can contact The Experience Team. Find out more about how the Team can help here.
Page last updated: 10 Oct 2023