GUIDES
Independence means forming an opinion from the evidence without pressure to favour the person paying or referring. Declare relevant relationships and interests, manage conflicts and explain the assessment arrangements; an external appointment alone does not remove every conflict.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
39 Essex Chambers, Mental Capacity Guidance Note: Carrying out and recording capacity assessments.
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Independence means forming an opinion from the evidence without pressure to favour the person paying or referring. Declare relevant relationships and interests, manage conflicts and explain the assessment arrangements; an external appointment alone does not remove every conflict. This guide covers the relevant evidence, support, process and limits in England and Wales.
Independence means forming an opinion from the evidence without pressure to favour the person paying or referring. Declare relevant relationships and interests, manage conflicts and explain the assessment arrangements; an external appointment alone does not remove every conflict. Treating professionals can have relevant knowledge as well as potential conflicts. Assess the actual relationship and purpose rather than assume that an external report is the only usable evidence.
Independence supports the reliability of an opinion alongside relevant expertise, sound method and evidence. Identify interests that could affect judgement and explain how they are managed. A claimed lack of connection does not replace clear reasoning.
Potential conflicts include family or financial interests, an organisation benefiting from the proposed care or transaction, or pressure to produce a particular result. Being introduced or paid by an interested person is not alone disqualifying; explain the circumstances and whether the opinion can remain independent.
A fee pays for professional work, not a conclusion. Agree it independently of the finding, frame the instruction as a question and disclose material relationships. Where CPR Part 35 applies, the expert’s overriding duty is to the court; other proceedings have their own requirements.
Prior professional knowledge can help establish the person’s abilities and pattern of change. A treating role is not automatically a conflict, but interests in a proposed arrangement or difficulties in separating roles need consideration. A newly instructed assessor may also have connections or limitations to disclose.
Consider the assessor’s organisation as well as the individual. Ask whether it benefits from the proposed placement or transaction, what other relationships exist and how professional independence is protected. Employment status and internal review alone do not establish independence.
Disclose relevant prior contact, relationships and interests and explain any steps taken. Some conflicts may be manageable; others may require another assessor or court directions. The assessment should not promise that disclosure removes every concern.
Consider an external opinion where a material conflict cannot be managed or the dispute or court requires it. Select for relevant competence as well as independence. No assessor can guarantee that their suitability will never be questioned.
The report should identify the instruction, relevant relationships and interests, sources, who attended and why, and any limitations. Privacy and communication support should be planned around the person. In proceedings include the declarations and information required by the applicable rules.
Independence requires transparent judgement and management of real interests. Review the relationships, support and evidence alongside the reasoning. It cannot be inferred solely from an external appointment, the size of a practice or the result reached.
No. A diagnosis does not establish lack of capacity. For a decision under the Mental Capacity Act, consider the relevant information and practicable support, then assess understanding, retention, use or weighing and communication by any means. Any inability must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Will-making has its own legal test.
Records showing who instructed the assessment and why, who was present, who paid and how the assessor relates to the parties. An independent report states these facts openly, because transparency about the instruction is itself part of the evidence of independence.
External independent assessment matters most where family members disagree, where a beneficiary or attorney arranged the assessment, where the care provider has an interest in the outcome, or where the decision will face court or Office of the Public Guardian scrutiny. Can someone have capacity for one decision but not another? Yes. Capacity is decision-specific and time-specific. The assessment must identify each decision and relevant time rather than give a general label.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Ask who instructed and pays, whether the assessor or their organisation benefits and what prior relationships exist. Discuss disclosure and management of any conflict; in proceedings, check the applicable expert-evidence requirements.
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