When assessing capacity around decisions of significant risk, such as serious medical treatments which a patient maybe declining or cases of self-neglect in which a patient wishes to remain in conditions others may not find to be appropriate or even dangerous, it may be necessary to involve legal support and the MCA Team in the first instance.

However, there are steps to reduce risk that should be taken, like considering if extra support and education or suggesting alternative options for intervention or treatment, may achieve the desired outcome without eliciting the same response from the patient.

It's crucial not to assume lack of capacity just because a decision is risky, and decisions shouldn't be made based solely on what seems right. The European Convention on Human Rights obliges public bodies to assess risky decisions properly if capacity is in doubt. Assessors should consider the seriousness of the decision's consequences (more serious the consequences of the decision, the more rigorous the steps that will be expected in determining whether or not the person has capacity) and in asking whether a person has capacity to make a decision which has particularly risky consequences for them, the information that they must be able to process includes those consequences.

When facing difficulties engaging a person in the assessment process, it's crucial to differentiate between unwillingness and inability to participate. Behaviour alone shouldn't determine capacity.

When continuous questioning may be futile or aggravating, consider ways to assist the person and document alternative strategies used. Alternatives may be:

  • Using other professionals, the patient is close to who may have a better chance at establishing the patients wishes and feelings
  • Speaking with people around the patient about past known wishes and feelings
  • Speaking with their family to understand better ways to gain engagement
  • Explaining how cooperation benefits them, can be helpful
  • If external pressure hinders engagement, legal support may be necessary, including court applications for Inherent Jurisdiction.

In situations where engagement is difficult or fluctuating it is essential that you clearly document the relevant information and the attempts made to share and support decision making, as well as any reasonable adjustments utilised.

However, forcing engagement isn't possible, instead, you may need to rely on contextual and surrounding evidence to form a reasonable belief about capacity or incapacity.

Fluctuating capacity describes the situation where a person sometimes has the capacity to make their own decisions and sometimes does not. This can be due to a number of reasons, but generally these can be divided into broadly three groups:

  • A temporary loss in mental functioning

Conditions that cause the person to become temporarily unable to make decisions.
For example, a change in mental health such as a manic episode brought on by a failure to take medication correctly or something relating to physical health like a urinary infection causing a period of confusion.

  • Predictably fluctuating capacity

Some conditions fluctuate predictably. For example, a person with dementia may perform better in the morning and gradually lose their decision making ability as the day progresses.

  • Unpredictable fluctuations of capacity

in some conditions the fluctuations cannot be predicted. For example, this group may have brain injuries or brain disorders (executive functioning should also be considered).

The Code of Practice indicates:

  • That a person with fluctuating capacity may be supported to make a decision
  • That it may be possible to put off the decision until the person has the capacity to make it
  • That “it is important to assess people when they are in the best state to make the decision if possible”.

However, if the decision cannot wait and to ensure that any risk in relation to a fluctuation of capacity is addressed, then more than one capacity assessment should be completed at different times to ascertain any support, or safeguarding considerations required. In such cases, the important thing to do is to record what the person would want in the event that they lose capacity in relation to that decision.

For repeated decisions, like managing complex or macro physical health conditions, consider the person's ability over the relevant time frame. If they can't consistently make all the interlinked micro decisions that make up a macro decision, especially for critical matters, an assessment clearly documenting the fluctuation will be essential and the patient will be deemed to lack with Best Interest process being followed. The courts support this practical approach, focusing on the person's actual decision-making ability in the material moment.