The Mental Capacity Report editorial team at 39 Essex Chambers have updated our guidance note on capacity assessment. For those not familiar with it, its 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 assessments, primarily in the context of health and welfare decisions. It also includes an appendix setting out the information that courts have held to be relevant (and in some cases) irrelevant to key types of decision, such as residence, care, contact, sexual relations, marriage and – new in this update – social media and the internet.
This update also includes further consideration of the dangers of unquestioning reliance on the presumption of capacity and how to approach complex situations such as fluctuating capacity and where a person is able to ‘talk the talk,’ but not ‘walk the walk.’