Dear Sheila
Having read some other providers inspection reports, I am slightly confused as to when an assessment of capacity is initiated. It appears that some homes have been marked down as not all of their service users have been assessed.
As far as I understood the legislation, everyone is assumed to have capacity to make decisions for themselves at the time the decision needs to be made. The home I manage is not registered for dementia users but that being said, some service users have short term memory loss but can clearly make simple decisions such as what to wear and eat and how to pass the time of day. I also have other service users who are able to manage all aspects of their affairs.
Should I be carrying out capacity assessments for all service users regardless of whether I think they have capacity? I assumed the assessment should only be done at the time a more complex decision needed to be made such as surgery or weighing up the pros and cons of a treatment for example.

Answered by Sheila Scott

Dear Candyce,

I believe that you are absolutely right in what you say.

The assumption is always that the person has capacity and as you are not specifically registered to care for people with dementia your assumption is correct ie that normally your service users will have capacity.

As you will know people may lose capacity temporarily and with older people this is often the result of an infection. This is something that you have to have in mind.

There is a great deal of information in this short guide for health and social care workers issued by the Government which you can download at: https://www.gov.uk/government/publications/health-and-social-care-workers-mental-capacity-act-decisions

As you will also be aware the Mental Capacity Act Code of Practice is a legal document: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/224660/Mental_Capacity_Act_code_of_practice.pdf

The assessment which must be used in all cases is straightforward but as you said in your email should be used for a particular decision.

Mental Capacity Act Assessment

Step 1

You must act from the assumption that the person has capacity to make the decision in question but:

1. Does the decision need to be made without delay?     Yes/No

2. If not, is it possible to wait until the person does have the capacity to make the decision for himself or herself? For example, a person may be drowsy or disorientated because of the medication they are taking.     Yes/ No

If the answer to question 1 is YES and to 2 is NO then proceed to the assessment.

If the answer to question 1 is NO then delay the making of the decision and make a diary note to review the person’s capacity to see if they can then make the decision at a later date.

If the answer to question 1 is YES but to Question 2 is YES revisit the matter to when a decision is needed and consider if the decision can be delayed.

Step 2

1. Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain (it does not matter if this is permanent or temporary)     Yes/No

2. If yes, does the impairment or disturbance make the person unable to make the particular decision?     Yes/No

If the answer to both those questions is NO then the person has mental capacity to make their own decisions.

If the answer is YES to either question then you need to decide the following;

1. Is the person able to understand the information relevant to the decision, including understanding the likely consequences of making, or not making the decision?    Yes/No

2. Is the person able to retain that information?     Yes/No

3. Is the person able to use or weigh that information as part of the process of making the decision?    Yes/No

4. Is the person able to communicate their decision (whether by talking, using sign language or any other means)?     Yes/No

If the answer to any of these four questions is NO then the person does not have the mental capacity to make a decision.

I think it is worthwhile to relook at the assessment that is used every time just to remind ourselves of the simple questions at the heart of a complex piece of legislation.

As long as your policies and procedures are clear then you are complying with the law.

Best wishes.

Sheila