In our previous blog we spoke about changes to the Mental Capacity Act (2005). In this blog we dig deeper into mental capacity and assessing people who may lack capacity……

Care service managers and owners can be very concerned if their rating goes from ‘Good’ to ‘Requires Improvement’.

These are in many cases related to mental capacity assessment.

Assessing Mental Capacity

  • Confusion around how to assess and document capacity and who should do it?
  • No capacity assessments in place, yet staff/carers routinely make decisions for people using their service.
  • Vague and general assessments such as…. “Mr Smith lacks capacity”.

Who should assess capacity?

When adults receive health or care services with staff involved in delivering those services, such as helping them get dressed, assisting with personal care or administering medication they must ask themselves one simple question:
“What is my authority for doing these things for this person?”

It’s a very simple question and the answer is straightforward. If there is any possible way you can enable a person to make a particular decision for themselves, then your authority must come from their consent.

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…. any care 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 Mr Smith arrived, they had a water infection, and we had to decide what they might like to eat or drink. Now that they are better, it is essential to take the time to let them choose for them self. They are happier and eats better.”

How do we assess capacity?

When we help and support our customers, we give them tools and forms to help them in their service. One of the forms we give them is our (DJD Social Care Consultants) Capacity Assessment form will guide them to work out, and record, the four steps that show someone has capacity for a specific decision:

    1. understand information given to them
    2. retain that information long enough to be able to make the decision
    3. weigh up the information available to make the decision
    4. 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. We can then say if it’s reasonable to do so it’s because there is an impairment of or disturbance in the functioning of a person’s mind or brain? 

No capacity assessments recorded at all. What does this mean?

The first principle of the MCA is sometimes not understood correctly. 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.  

A presumption of capacity:

  • Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise
  • This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability

This means do not routinely assess everyone’s capacity.  Nobody has to prove they have capacity.  it’s up to carers and managers to prove the lack of it, if there is some trigger that makes it seem likely, and if a decision needs to be made.

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 Mr Smith’s choice to walk out of their own home or a care home at midnight because they think they are 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 need. Your assessment of their capacity to make this decision (about going out at midnight) is straightforward. You might record:

“Mr Smith 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 shift worker, caused by his dementia, which is often worse at night when he’s tired.”

General capacity assessments

You must never write (or think) ‘Mr Smith 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 Mr Smith probably unable to make this particular decision (about agreeing to take medication) for himself, 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. It is that simple

“Mr Smith cannot always tell us in words which things he’d like to do on any given day, but if we take him to the supermarket, or outside a shopping centres, 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:

 ‘Mr Smith lacks capacity to consent to their necessary daily medication because they can’t remember their life-long medical condition although we always remind them. This is due to their poor memory linked to their dementia.’


Ideas for managers:

  • Share in team meetings and supervision with staff what the code of practice says about assessing capacity
  • Cover it in refresher training
  • Send information out in newsletters and regular updates to your team
  • Display information on staff notice boards


Here at DJD Social Care Consultants we specialise in:

  • Raising standards
  • Supporting managers and their team
  • Offering support and advice
  • Putting robust systems and processes in place

If we can assist you in any way, in any of these areas please contact us and we would be happy to help.

Take a look at what other services we offer by: 

Contacting one of our team by calling 01134 40 50 74 or emailing us at