1. In almost all cases, the core of a capacity assessment is – or should be – a real conversation with the person on their own terms, which facilitates the person to apply their own value system to the decision at hand.[1]See Kings College NHS Foundation Trust v C [2015] EWCOP 18, in particular at paragraph 38.  
2. It is important to understand that it is not only medical professionals – and in particular not only psychiatrists – who can carry out a capacity assessment.   It is frequently the case that professionals or others who know the person better, and in particular who have seen the person over time, will be able to do a more robust capacity assessment than a person (of whatever discipline) ‘parachuted’ in for a snapshot assessment.[2]See in this regard both A Local Authority v SY [2013] EWHC 3485 (COP) at paragraph 22 (emphasising that “appropriately qualified social worker is eminently suited to undertake […] capacity … Continue reading 
3. Whoever you are – but especially if you are being ‘parachuted’ in – you need to do your homework and try to make sure that you are familiar with the situation.  In other words, ensure you are familiar with P’s health problems, circumstances, incidents where risks have materialised etc.  This is particularly important if you have been asked to consider someone’s capacity and you do not already know them, so do not have the advantage of having a sense of where the decision sits in the wider context of their life.

4. A good record of a capacity assessment that reaches the conclusion that a person lacks the capacity to make a specific decision will show that you have: 

• Been clear about the capacity decision that is being assessed;
• Ensured P (and you) have the concrete details of the choices available (e.g. regarding treatment options; between living in a care home and living at home with a realistic package of care);
• Identified the salient and relevant details P needs to understand/comprehend (ignoring the peripheral and minor details);
• Balanced the protection imperative with the free choice imperative
• Demonstrated the efforts taken to promote P’s ability to decide and, if unsuccessful, explained why;  
• Recognised that assessment is not necessarily a one-off matter, and that you have taken the time to undertake to gather as much evidence as is required to reach your conclusion – including, for instance, returning to have a further conversation with P or obtaining corroborative evidence;  
• Been clear about why the relevant impairment/disturbance in the functioning in P’s mind or brain is causing them to be unable to make the decision; 
• Answered the question: why is this an incapacitated decision as opposed to an unwise one? 

5. Verbatim notes of questions and answers can be particularly valuable in the record of the assessment, because they can allow the reader then to get a picture of the nature of the interaction and judge for themselves both the nature of the questions asked and of the responses received.[4]As a judge has noted (in relation to expert reports, but equally relevant to other reports): “[t]he interview with P need not be fully transcribed in the body of the report (although it might be … Continue reading   This is especially important if the situation is one where your conclusion is finely-balanced: the closer to the line, the more the onus is on you to explain why you have a reasonable belief that the person has (or lacks) capacity to make the decision.  
6. If you are assessing a person’s capacity to make a number of different decisions, it is important to take a step back and ask before reaching a conclusion as to the person’s decision-making capacity in relation to each decision whether they all make sense logically together.  This point was reinforced by the Court of Appeal in B v A Local Authority,[5][2019] EWCA Civ 913. in which it emphasised the danger of approaching decisions in ‘silos’ and reaching mutually incompatible conclusions.  
7. In addition to the specific points mentioned above, as with all documentation, the key general points to remember are: 

• Contemporaneous documentation is infinitely preferable to retrospective recollection;  
• Do not assert an opinion unless it is supported by a fact; 
• “Yes/No” answers in any record are, in most cases, unlikely to be of assistance unless they are supported by a reason for the answer; 
• What is reasonable to expect by way of documentation will depend upon the circumstances under which the assessment is conducted.   An emergency assessment in an A&E setting of whether an acutely confused patient has the capacity to run out of the ward into a busy road will not demand the same level of detail in the assessment or the recording as an assessment of whether a 90 year old woman has the capacity to decide to continue living in her home of 50 years where the concerns relate to her declining abilities to self-care.

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