- We should consider capacity at all stages of the assessment, planning and review process.
- Capacity is decision and time specific – impairments may fluctuate over time and people may be able to make straightforward decisions but not more complex ones.
- Capacity assessments should evidence the causative nexus – that there is an underlying cause that results in the person’s inability to make decisions.
- As with all assessments – capacity assessments should be proportionate to the situation.
December 2018: This chapter was significantly revised as a result of local review.
Where a practitioner is supporting a person who appears to have an impairment or disturbance of the mind or brain which may affect their ability to make decisions, the practitioner should carry out an assessment of the person’s capacity based on the two stage test of capacity set out in the Mental Capacity Act 2005.
2. Two Stage Capacity Test
- Stage 1: Is there an impairment of, or disturbance in the functioning of a person’s mind or brain? If so;
- Stage 2: Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
3. Causative Nexus
It has been established in case law that in all capacity assessments it is vital to consider whether this third question – the ‘causative nexus’ – is proven. In other words, you must be satisfied that the person’s inability to make a decision is because of an impairment of, or a disturbance in the functioning of, the mind or brain, and you must evidence in your assessment that:
- you are satisfied;
- why you are satisfied;
- how there is a causal link between the disturbance or impairment of the person’s mind or brain and the person’s inability to make the decision(s) in question.
Case law references:
- PC and NC v City of York Council  EWCA Civ 478 at paragraph 56;
- Heart of England NHS Trust  EWHC 342 (COP).
See Mental Capacity Act 2005 Code of Practice Chapter 4 for further information.
4. Adult Care Capacity Assessment Form
The exception to this is where a proportionate capacity assessment can usually be recorded as part of gaining consent to undertake an assessment.
Capacity assessments must be treated as decision and time specific. They cannot be undertaken retrospectively and cannot be rectified if they are missing on file. Assessments can be accompanied by mental health or other specialist assessments.
Capacity assessments should be recorded where it is suspected the person does not have capacity to:
- consent to the assessment, where the customer or anyone involved does not agree that the assessment should take place (see Section 2, Consent and Capacity);
- contribute to the care planning process;
- make specific decisions, such as a change of accommodation;
- consent to a particular aspect of care or case management. For example, admission to care or moving and handling care plans.
When the person is lacking capacity, any existing Lasting Power of Attorney (LPA) or Court Order should be scrutinised by the practitioner to establish if it is valid and its terms applicable to the decision being considered, before the authority to make the decision is delegated.
Where the decision making is delegated to a LPA or a Court Appointed Deputy, the practitioner must record that they have demonstrated that they are acting in the person’s best interests. Any concern that an LPA or Deputy is not acting in the best interests of the person should be considered as a potential safeguarding issue and managed accordingly (see Safeguarding).
The record should evidence that the LPA or Court Order applies to the decisions being made (i.e. financial and property, or health and wellbeing), that it does not exclude certain decisions and that it is registered. A copy of the LPA or Court Order should be on file.
Even with a LPA or Court Order in place, there should be evidence on file that everything possible has been done to help the person make the decision.
Where a best interest decision is required, the assessor should use the Best Interests Checklist as a prompt to ensure compliance with the MCA. There is a duty to consult all involved, including family, and clearly record their views.