A Brief Guide to Carrying out Capacity Assessments

a paper published by 39 Essex Chambers

A: Introduction

1. This purpose of this document is to provide for social workers and those working in front-line clinical settings a brief overview of the law and principles relating to the assessment of capacity. Its focus is on
   (a) how to apply the MCA 2005 principles when assessing capacity; and
   (b) how to record your assessment, primarily in the context of health and welfare decisions.
   [My purpose in reproducing this is so that individuals can be aware of the law and how it might affect them in different situations.
   Keenly aware that I called for help with a neighbour who, in my opinion, was incapable of making a rational decision and got very politely told by paramedics and police that I could not make that judgement!]
   
2. This document cannot take the place of legal advice. In any case of doubt as to the principles or procedures to apply, it is always necessary to consult your legal department. In particular, if it appears that the person in question is subject to undue influence or coercion, it is always vital to consult your legal department as soon as possible to consider whether and how their interests are to be secured.
   
3. The courts have now considered questions of capacity on many occasions, sometimes giving guidance as to how the Act should be applied in general terms, and sometimes applying the Act to particular factual scenarios.
   
4. We give in this guide references to the key cases throughout, with hyperlinks to the case comments in the database maintained by the editors of the 39 Essex Chambers Mental Capacity Law Report. However, we give these references in footnotes for those who want to read further: the key information is contained in the body of the Guide, in language which is hopefully not as legalistic as that sometimes adopted by the courts.

The full text of the guidance (PDF 28pp) is here

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