The purpose of this guidance and how to use it
This guidance does not have any official status. It was produced by a multidisciplinary team of researchers, seeking to reflect the requirements of the law in England & Wales, good clinical practice and relevant ethical considerations.
We hope it will provide prompts for clinicians and social care professionals assessing capacity as to questions to ask and relevant considerations to take into account, alerts as to specific legal matters which the courts have made clear have to be taken into account, and tools to help think through some of the more common situations of difficulty encountered in practice.
It also sets out our research-based recommendations about how to think about both capacity criteria and capacity rationales, which are designed, in particular, to support greater transparency and greater accountability in the assessment of and recording of capacity.
However, it is important to emphasise that the guidance cannot provide the answer as to whether any specific person has or lacks the capacity to take a specific decision. This will always require the exercise of judgment by the professional(s) concerned, applying the law with relevant research and evidence to each situation and context.
Contributors
Gareth Owen
Gareth Owen is a Reader at the Institute of Psychiatry, Psychology and Neuroscience (IOPPN) in King’s College London and an honorary Consultant Psychiatrist at King’s Health Partners. Gareth is the Lead Investigator on the Mental Health and Justice project.
Gareth was a member of the core editorial team, and contributed to the underlying research.
For more information, see here.
Alex Ruck Keene
Alex Ruck Keene is a barrister at 39 Essex Chambers, London, Visiting Professor at the Dickson Poon School of Law, and Visiting Senior Lecturer at the Institute of Psychiatry, Psychology and Neuroscience (IOPPN), both in King’s College London.
Alex was a member of the core editorial team, and contributed to the underlying research. He is also a member of the Mental Capacity Report editorial team at 39 Essex Chambers, and co-wrote the team’s guidance note upon capacity assessment and recording from which parts of this work draws (with permission).
For more information, see here.
Scott Kim
Scott Kim is a Senior Investigator at the Department of Bioethics in the National Institute of Health, USA. He is also Adjunct Professor of Psychiatry at the University of Michigan (Ann Arbor) and Adjunct Professor of Neurology at the University of Rochester.
Scott was a member of the core editorial team, and contributed to the underlying research.
For more information, see here.
Kevin Ariyo
Kevin Ariyo is a PhD candidate at the Institute of Psychiatry, Psychology and Neuroscience (IOPPN) in King’s College London.
Kevin provided editorial support to the guidance document and contributed to the underlying research, particularly around interpersonal influence. He also supported the development of the website.
For more information, see here.
Nuala Kane
Nuala Kane is a trainee psychiatrist at South London and Maudsley NHS Foundation Trust and a Mental Health Research UK MD(Res) scholar at King’s College London.
She led on drafting the ‘Criteria’ and ‘Rationales’ pages of the capacity guide and contributed to underlying research.
Acknowledgements
Thanks to colleagues in the MHJ project including the McPin Service User Advisory Group and the Bethlem Gallery, and particular thanks to Dr Nuala Kane and Professor Tony David.
We thank Dr Thomas Hartvigsson for his contribution to the material on insight.
We also thank the members of the editorial team of the 39 Essex Chambers Mental Capacity Report for their permission to draw upon their guidance note on capacity assessment and recording.
Feedback
If you wish to provide us feedback on anything related to this project, we would be happy to hear from you.
If your feedback concerns the content of the Capacity guide, please contact Alex Ruck Keene at alexander.ruck_keene@kcl.ac.uk.
If your feedback is a technical concern with the website, please contact Tom Prater at tomoliverprater@gmail.com.
Disclaimer
Nothing on this website represents legal advice, nor can it serve as a substitute for legal advice upon the facts of any specific case. No liability is accepted for any adverse consequences of reliance upon it.