Assessment of Capacity
- A person’s capacity to make a particular decision should be assessed at the time the decision needs to be made.
- The assessor should be clear about the specific decision the person is required to make and understand details of the choices available to the person (e.g. living in a care home vs living at home with care package).
- The consultation should be held in a place where the person is likely to be best able to understand/retain information (i.e. quiet environment with minimal distractions).
- Consider involving a close relative/friend in the consultation.
- Consider involving Allied Health Professionals (AHPs) in the consultation where appropriate e.g. Speech and Language Therapists (SLT).
During assessment of capacity the assessor should endeavour to:
- Explain the options to the person in clear simple language.
- Provide written information to assist the person’s understanding where appropriate.
- Use picture-based material, if helpful.
If the person appears to be finding it difficult to engage with the assessment process (e.g. due to distress, anxiety, low mood, health issue, pain), then repeat the assessment on another occasion.
Having assessed the person’s capacity, the assessor needs to:
- Be able to state which practical steps have been utilised to support the person’s understanding and retention of information required to facilitate their decision making ability (e.g. use of Alternative and Augmentative Communication)
- State if any practical support provided was helpful in assisting the person’s decision making capacity.
When assessing a person’s capacity to make a specific decision, the assessor needs to be able to state if the person is capable of:
- Making a decision.
- Communicating a decision.
- Understanding the nature of the decision, choice or action.
- Weighing up relevant options and understanding the potential short and long term consequences.
- Understanding each decision and their inter-relation where a series of linked decisions is required.
- Understanding their particular circumstances and the relevance to the decision (i.e. insight)
- Retaining all relevant information long enough to make a decision.
- Declining to make a decision when such a decision may not be necessary.
- Making the same decision consistently when given the same information again.
It is of paramount importance that the assessor takes in to consideration any cognitive problems (including executive function and memory deficits) and communication impairments.
If the person is deemed to lack capacity following assessment, the assessor’s report should state the factors affecting the person’s capacity.
Points to consider:
The Addenbrookes Cognitive Examination (ACE 111) is frequently used as a screening tool by clinicians carrying out cognitive assessment. It aims to screen for difficulties with attention, memory, verbal fluency, language and visuospatial functioning. However, this assessment tool (and other similar screening tools) is of limited value in the assessment of capacity as the person may perform well on this assessment, despite experiencing marked difficulties in everyday life due to cognitive impairments not readily identified by screening assessments (e.g. deficits in executive functioning, including insight). On screening assessment, the person may appear more able than they actually are in real life. Alternatively, they may perform poorly on assessment while functioning at a reasonable level in everyday life.
Executive functioning difficulties may be masked by preserved language and verbal reasoning skills, so much so that the person may appear remarkably unimpaired. The person may present with a good social facade and greatly underestimate their need for support (due to impaired insight). This illustrates the importance of gathering information from close family and carers regarding the person’s abilities and challenges in managing everyday life (Activities of Daily Living), to inform accurate and comprehensive assessment of capacity.
Functional impairments may go unnoticed within a highly supportive setting (e.g. hospital or care setting). The structure and routine, in addition to the high level of assistance provided, means that there may be limited opportunities for executive difficulties to be noticed.
Please click on the following links for further guidance on capacity assessment for Guardianship.
Guidance for making decisions when a Person is Deemed to lack Capacity
Scottish Government: Adults with Incapacity: Guide to Assessing Capacity
