[Download a word doc of the recording tool here]
This recording tool is based upon the ‘Capacity guide’ which ‘was produced by a multidisciplinary team of researchers, seeking to reflect the requirements of the law [Mental Capacity Act, 2005] in England & Wales, good clinical practice and relevant ethical considerations.’
The recording tool is specifically based on the ‘Practical legal guidelines’ section of the ‘Capacity guide’ and has not been created to replace any existing mental capacity report that you use in your practice. Instead, it is designed to help you think through, reflect and to initially record informally the different stages of an assessment of capacity in preparation for completing a more formal record of your conclusions. This ‘tool’ will most likely be beneficial to use in situations that appear to be complex or ‘borderline’.
Before using this recording tool, you must firstly read the Capacity guide.
Step 1: What is the actual decision in hand? Record: How would you frame the question to the person? Record: NB: If you are dealing with more than one decision, look at each decision separately and on a separate recording tool. |
Step 2: What is the information relevant to the particular decision? This should include a summary of: The relevant matter requiring a decisionwhat the options are that the person is to choose between and what are the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision? Record: Supporting Guidance: For guidance on the relevant information for different categories of decision see this guidance note written by 39 Essex Chambers, which covers the following categories of decision; Care; Contact; Contraception; Conducting proceedings; Deprivation of liberty; Medical treatment; Education; Marriage; Residence; Social media; Sex. For decisions relating to hoarding see AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39 (15 August 2022) (bailii.org) and specifically paragraphs 13 to 15 of the judgment. For decisions relating to executing a Lasting Power of Attorney see Capacity to execute a Lasting Power of Attorney (LPA) | Hill Dickinson For decision relating to property and finances see – Making financial decisions: Guidance for Assessing, Supporting and Empowering Specific Decision Making (Empowerment Matters) |
Step 3: What are the reasons for believing that it is necessary to undertake a capacity assessment at this time? Evidence: |
Step 4: To comply with s.1(3) MCA 2005, you must take all practicable steps to help the person before concluding that they are nevertheless unable to make a decision. Record answers to the following prompt questions below, if any of the questions are not relevant to the facts of the case explain why this is the case: What is the method of communication with which the person is most familiar (is it, for instance, a pointing board, Makaton or visual aids)?Record: What is the best time of day to discuss the decision in question with the person?Record: What is the best location to discuss the decision in question with the person? Record: If you do not know the person, would it assist to have another person present who does (and, if they do, what role should they play)? Record: Has the person made clear (in whatever fashion) that there is someone that they would like to be present, or someone they would really like not to be present? Record: What help does the person require to learn about and understand the information relevant to the decision? Record: Is it possible to complete the assessment in one go, or is it necessary to come back and see the person on more than one occasion, even if only to put the person at their ease and help them engage with the process?Record: Is there something that you can do which might mean that P would be able to make the decision?Record: |
Step 5: Outline all the practicable steps that you have taken to support the person to make the decision in question, this should include support given to the person throughout the whole decision-making process.Evidence: |
Step 6: Is the person able or unable to make the decision for themselves? Supporting Guidance: In almost all cases, the core of a capacity assessment is 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. As such, 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. 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. Question 1: Is the person able to understand the relevant information?Evidence: Recommendation – “Understanding” should be used only in its narrow sense of grasping relevant information or concepts. To grasp information refers to inability to grasp, on a purely intellectual level, concepts (their nature or meaning) or information (e.g., volume, detail, complexity) relevant to the decision. Question 2: Is the person able to retain the relevant information?Evidence: Recommendation – “Retaining” should be cited only in relation to the ability to remember relevant information. Question 3: Is P able to use or weigh the relevant information?Evidence: Recommendation – The “use or weigh” criterion occupies a large conceptual space. Whenever Use or Weigh is applied, capacity assessors should be sure to specify their rationale(s). This should lead to more transparent and reliable judgments and communications. In court practice, the MCA criterion “to use or weigh” was most frequently linked to the ability to, “appreciate” and its subcategories, “reasoning” and less frequently occurring rationales such as, “ability to imagine or abstract,” “ability to value or care,” “to think through decisions non-impulsively” and “to give coherent reasons.” See here for further discussion. Question 4: Is the person able to communicate their decision?Evidence: Recommendation (para 50) – If, the person appears unable to understand, retain, use or weigh relevant information, but is nevertheless seeking to communicate something, then: The record of your assessment should not say that they are unable to communicate their decision – it should say that they are unable to make a decision, and what they are communicating are wishes and feelings; You should take into account what they are communicating for purposes of constructing the best interests decision: see further the 39 Essex Chambers guide to this process here. |
Step 7: Is there an impairment or disturbance in the functioning of the person’s mind or brain?Evidence: Supporting guidance (para 54) – It is, important to consider the following points: Some impairments or disturbances are sufficiently self-evident to mean that lay interpretations may be legitimate. Examples would include coma or acute confusional states in which the person is clearly thinking and behaving in a manner inconsistent with their baseline state (e.g. through delirium or intoxication with alcohol or drugs). It is not necessary for the impairment or disturbance to fit neatly into one of the diagnoses in the ICD-11 or DSM-5. The important thing is that there is a proper basis upon which to consider that there is an impairment or disturbance. For example, coma is not in the DSM-5 and many of the diagnostic subdivisions and language of DSM-5 may be less relevant to capacity assessment. Finally, particular care needs to be exercised if you are considering a person who appears to have a very mild learning disability or an unusual personality– this may well not be enough, in isolation, to constitute an impairment or disturbance of the mind or brain for these purposes |
Step 8: Do you have a reasonable belief that the person’s inability to make the decision is because of the impairment or disturbance in the functioning of their mind or brain?Evidence: Supporting guidance (para 55 to 58) – It is important to be able to answer this third question – sometimes called identifying the ‘causative nexus.’[27] In other words, are you satisfied that the inability to make a decision is because of the impairment of the mind or brain? Any pro forma form for the assessment of capacity that does not include a final box asking precisely this question is likely to lead you astray. To reiterate, there has to be, and you have to show that you are satisfied why and how there is, a causal link between the disturbance or impairment and the inability to make the decision(s) in question. To test whether you are satisfied that the ‘causative nexus’ is satisfied, you can ask one (or more) of these questions: The “plausibility” question: ask whether it is clinically plausible that the inability is caused by the impairment or disturbance? For example, if someone does not appear to retain information is this plausibly explained by a personality disorder? The “subjective” question: ask “would the relevant decision be one P would have taken had they not had the impairment or disturbance”? For example, if someone was not in a delirium, or not in a severely depressed phase of affective disorder, would they be making this decision to refuse treatment? |
Final Checklist It can be helpful in complex situations to work through this final checklist with a colleague or a critical friend, and you should consider whether you have: Been clear about the capacity decision that is being assessed; Ensured the person (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 the persons’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 the person’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? 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. |