Quality standard

Quality statement 3: Assessment of capacity

Quality statement

People aged 16 and over who are assessed as lacking capacity to make a particular decision at the time that decision needs to be made, have a clear record of the reasons why they lack capacity and the practicable steps taken to support them.

Rationale

A person's capacity must be assessed specifically in terms of their capacity to make a particular decision at the time it needs to be made. Capacity must not be determined on the basis of age, appearance, condition or an aspect of the person's behaviour. The starting assumption must always be that the person has the capacity, until there is proof that they lack capacity. Anyone who concludes that a person lacks capacity should be able to provide evidence. They also need to be able to demonstrate that they have taken all practicable steps to help the person make a decision for themselves. Capacity to make specific decisions may change over time. This means that, if possible, a decision may need to be postponed and the person's capacity reviewed and reassessed.

Quality measures

Structure

a) Evidence of local protocols to record practicable steps taken during the decision-making process to support people aged 16 and over who may lack capacity.

Data source: Local data collection, for example local protocols or recording templates.

b) Evidence of local protocols to ensure mental capacity assessments are collaborative, person centred, thorough and aligned with the Mental Capacity Act 2005 and its Code of Practice.

Data source: Local data collection, for example an audit of the quality of mental capacity assessments.

c) Evidence of local arrangements to ensure that assessors can seek advice from people with specialist knowledge to help them assess whether there is evidence that the person lacks mental capacity.

Data source: Local data collection, for example service level agreements and partnership arrangements between services.

Process

a) Proportion of mental capacity assessments with the outcome stating that the person lacks capacity to make a particular decision, with a record of the practicable steps taken to help the person make the relevant decision.

Numerator – the number in the denominator with a record of the practicable steps taken to help the person make the relevant decision.

Denominator – the number of mental capacity assessments with the outcome stating that the person lacks capacity to make a particular decision.

Data source: Local data collection, for example local audit of patient records or individual care plans.

b) Proportion of mental capacity assessments carried out with people aged 16 and over with an outcome of the assessment stating that the person lacks capacity to make a particular decision, with a record of:

  • the impairment/disturbance of the mind or brain that has been identified

  • the reasons why the person is unable to make a decision (with reference to section 3 of the Mental Capacity Act 2005)

  • the fact that the person's inability to make a decision is a direct consequence of the impairment or disturbance identified.

Numerator – the number in the denominator with a record of:

  • the impairment/disturbance of the mind or brain that has been identified

  • the reasons why the person is unable to make a decision (with reference to section 3 of the Mental Capacity Act 2005)

  • the fact that the person's inability to make a decision is a direct consequence of the impairment or disturbance identified.

Denominator – the number of mental capacity assessments carried out with people aged 16 and over with an outcome of the assessment stating that the person lacks capacity to make a particular decision.

Data source: Local data collection, for example local audit of patient records or individual care plans.

What the quality statement means for different audiences

Service providers (such as community services, local authorities, private care providers, GPs and hospitals) develop policies, guidance and tools that support good quality mental capacity assessments. They monitor and audit the quality of the assessments, taking into account the degree to which they are collaborative, person centred, thorough and aligned with the Mental Capacity Act 2005 and its Code of Practice. They include people's views and experiences in data collected for monitoring an organisation's mental capacity assessment activity.

Health and social care practitioners (such as social workers, care staff, GPs, doctors, nurses and therapists) take a collaborative approach to assessing capacity. They work with the person and other practitioners involved in the person's care to produce a shared understanding of what may help or hinder the person's communication and decision making. If the person is assessed as lacking capacity, they record what impairment or disturbance of the mind or brain caused the inability to make a decision, the practicable steps taken to help the person make a decision for themselves and why the practitioner considers this to be an incapacitous decision as opposed to an unwise decision.

Commissioners (such as local authorities, clinical commissioning groups, NHS England) ensure that they commission services that follow the principles and requirements of the Mental Capacity Act 2005 and assume capacity unless it is established that the person lacks capacity. They commission necessary training to facilitate person-centred capacity assessments aligned with the Mental Capacity Act. They also ensure that people have sufficient access to advocacy services and that assessors have access to people with specialist condition-specific knowledge, such as psychologists or speech and language therapists, to help assess the person's mental capacity.

People aged 16 and over who have an assessment of their mental capacity to make a decision have an assessor who is able to communicate with them as clearly as possible. The assessor explains what is involved in the decision, finds out what the person's wishes and preferences are and makes a record of these. If the assessor decides that the person is not able to make this decision, they make a record of the evidence supporting this conclusion.

Source guidance

Decision-making and mental capacity. NICE guideline NG108 (2018), recommendations 1.4.27 and 1.4.28

Definitions of terms used in this quality statement

Mental capacity

The concept of capacity under the Mental Capacity Act 2005 is relevant to many decisions including care, support and treatment, financial matters and day-to-day living. Capacity is decision-specific, and an individual is assumed to have capacity unless, on the balance of probabilities, proven otherwise. To lack capacity within the meaning of the Mental Capacity Act 2005, a person must be unable to make a decision because of an impairment or disturbance in the functioning of the mind or brain. The inability to make a decision must not be due to other factors, for example because of undue influence, coercion or pressure.

A lack of capacity can only be established if the condition prevents the person from understanding, retaining, using or weighing information about the decision, or communicating their decision. It cannot be established unless everything practicable has been done to support the person to have capacity, and it should never be based on the perception that the decision made is unwise. [Adapted from NICE's guideline on decision-making and mental capacity, section 1.4 on assessment of mental capacity]

Assessing capacity

The Mental Capacity Act 2005 sets out the process of assessing mental capacity to determine if a person lacks capacity to make a particular decision. [Metal Capacity Act 2005 section 2 and section 3].

Practicable steps

'Practicable steps' links to principle 2 of the Mental Capacity Act (and chapter 3 of the Code of Practice), which states that 'all practicable steps' should be taken to help a person make a decision before being treated as though they are unable to make the decision. There are obvious steps a person might take, proportionate to the urgency, type and importance of the decision. These might include the use of specific types of communication equipment or types of languages such as Makaton, or the use of specialist services, such as a speech and language therapist or psychologist. Practicable steps could also involve ensuring the best environment in which people are expected to make often life-changing decisions – for example giving them sufficient time, privacy and peace and quiet, or ensuring they have a family member or other trusted person to provide support during decision making, if this is their wish. [NICE's guideline on decision-making and mental capacity, terms used in this guideline]