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31st January 2020

How to assess capacity right

Managers are horrified if their rating goes from ‘Good’ to ‘Requires Improvement’.  Three common errors relate to mental capacity assessment:

  • Confusion among staff about how to assess capacity or who should do it
  • No capacity assessments, yet staff routinely make decisions for people
  • Vague, global assessments (‘Mrs Jones lacks capacity’)

Who should assess capacity?

Where adults receive health or care services, staff delivering those services – helping them eat, giving personal care or medication - must ask themselves one simple question:

What is my authority for doing these things to this person?

It’s a simple question, and the answer is pretty straightforward too.  If there is any possible way you can enable people to make a particular decision for themselves, then your authority comes from their consent.  That’s the authority your own GP has for giving you a flu jab every autumn. She checks you know what the injection is for, and that it may give you a sore arm: this quick, easy step gives her the confidence that there is no reason to question your capacity.

If someone might lack capacity, your authority comes from the MCA, which says that anyone working in health or social care is protected from liability provided they ‘reasonably believe’ the person lacks capacity, and ‘reasonably believe’ that what they want to do is in the best interests of the person (rather than being easiest for staff).

This means that the answer to ‘who should assess someone’s capacity?’ is, it’s any staff who will do things the person can’t consent to. If someone’s condition is stable, you don’t need to reassess all the time. You can rely on an assessment in a care plan provided it’s reviewed at intervals, and as long as you don’t assume lack of capacity without evidence:

When Millie arrived, she had an infection, and we had to decide what she might like to eat or drink. Now she’s better, it’s essential to take the time to let her choose for herself: she’s happier and eats better.

How do we assess capacity?

The QCS Capacity Assessment form will guide you to work out, and record, the four steps that show someone has capacity for a specific decision:

  • Understand the ‘big facts’ about this decision
  • Remember them, just for long enough to:
  • Use or weigh them to reach a decision, and then
  • Communicate their decision

If the person can’t manage one (or more) of these steps, after all possible help, they cannot make the decision. In recording a capacity assessment, you must link it to a specific decision or series of decisions, then say if it’s reasonable to say it’s because of some condition in their mind or brain:

Janet lacks capacity to consent to intimate personal care; she says, crossly, that she does not need it. This is probably due to her very poor memory, caused by her acquired brain injury. This prevents her being able to remember the information that she is doubly incontinent for long enough to make this decision at the time it needs to be made.

No capacity assessments recorded at all

The first principle of the MCA is sometimes not understood properly. It says, we must always assume that people have the capacity to make their own decisions in their lives, unless there is some reason to think otherwise.  This means don’t routinely assess everyone’s capacity.  Nobody has to prove they have capacity: it’s up to staff to prove the lack of it, if there is some trigger that makes it seem likely, and if a decision needs to be mad.

Some providers hide behind this principle, by refusing ever to assess anyone’s capacity – they think, wrongly, that they’re not allowed to. They say, ‘It’s Simon’s choice to leave the care home at midnight because he thinks he’s late for work; we can’t stop him.’  In fact, his actions are certainly enough to make it likely he lacks capacity.  If you don’t ask the question, the person is at great risk of harm or distress; they may not get the essential care or treatment that they really do need. Your assessment of Simon’s capacity to make this decision (about going out at midnight) is straightforward. You might record:

Simon lacks capacity to decide about leaving the care home at night because he is unable to use or weigh information about the risks to him, and that he isn’t really late for work. This is due to a strong delusional belief that he’s still a teacher, caused by his dementia, which is often worse at night when he’s tired.

Global capacity assessments

You must never write (or think) ‘Mrs Jones lacks capacity.’ The sentence should never end there. The MCA is clear that capacity is ‘decision and time specific’. That means your question to yourself is:

Is Mrs Jones probably unable to make this particular decision (about agreeing to take medication) for herself, at the time it needs to be made? 

If people can decide among the options, perhaps after being reminded every time of the main facts about each, or even non-verbally, record in the care plan how to enable them to do this:

Jeff can’t tell us in words which activities he’d like to do on any given day, but if we take him to the art or exercise class, or outside to the minibus, he loves to pick which he feels like doing.

If someone can’t make this decision, record how you know she can’t, despite your best efforts to help her:

 ‘Mrs Jones lacks capacity to consent to her necessary daily medication because she can’t remember her life-long diabetes although we always remind her; this is due to her poor memory linked to her dementia.’

Challenge for managers

Share in team meetings and supervision with staff what the code of practice says about assessing capacity here (chapter 4) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdfOffer small prizes for staff who find great ways to support someone’s decision-making, or who can explain best how we must all assess capacity when it’s in doubt, and how to do it.  Send us your winning examples, and we’ll share them with others!

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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