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For most professionals completing Mental Capacity Assessments, Principle 2 will be familiar. Before concluding that someone lacks capacity, we are legally required to take all practicable steps to support them to make their own decision. In many assessments this feels relatively straightforward. We may simplify our language, provide written information, take breaks or choose a quieter environment. However, when someone presents with complex communication needs, such as aphasia, applying Principle 2 becomes considerably more challenging.
For most professionals completing Mental Capacity Assessments, Principle 2 will be familiar. Before concluding that someone lacks capacity, we are legally required to take all practicable steps to support them to make their own decision. In many assessments this feels relatively straightforward. We may simplify our language, provide written information, take breaks or choose a quieter environment. However, when someone presents with complex communication needs, such as aphasia, applying Principle 2 becomes considerably more challenging.
How do we know when we've done enough? How can we be confident that what looks like an inability to understand or communicate isn't actually a limitation of our assessment method, not theirs? These are questions I have found myself reflecting on recently.
Aphasia is a language disorder caused by damage to the areas of the brain responsible for language, most commonly following a stroke. It's more than a speech difficulty, depending on type and severity, it can affect understanding and expression across multiple channels.
A person living with aphasia may experience difficulties with:
Some people know exactly what they want to say but cannot retrieve the words. Others may speak fluently, but the words they produce do not accurately reflect what they intended to communicate. Some understand everyday conversation but struggle when information becomes abstract, unfamiliar or legally complex. Importantly, these communication difficulties do not, by themselves, establish that the person lacks capacity to make a particular decision.
This distinction is fundamental to the Mental Capacity Act, and it's where assessments become difficult when communication looks like incapacity. Mental capacity is decision-specific and time-specific. Under the Mental Capacity Act 2005, the relevant question is not whether the person has a diagnosis or communicates in a conventional way. It is whether, because of an impairment of or disturbance in the functioning of the mind or brain, the person is unable to make the particular decision at the material time.
Imagine asking someone a simple yes/no question. They confidently answer "yes." A minute later, "no." Without understanding their communication disorder, it would be easy to conclude they were confused or unable to retain information.
For some people with aphasia, a spoken yes/no response may not reliably convey the intended answer. Apraxia of speech can add difficulty producing speech. Inconsistent responses therefore call for careful communication assessment and checks using other methods; they do not establish either incapacity or intact reasoning. If we accept one answer at face value, we risk assessing the communication barrier rather than the person’s decision-making ability.
This is precisely why Principle 2 matters.
NICE’s stroke rehabilitation guidance and RCSLT guidance on aphasia and supported decision-making place communication support at the centre of participation. They provide practical approaches; they do not establish a single adjustment that works for everyone or a shortcut to a capacity finding.
The evidence suggests that people with aphasia are more likely to communicate effectively when professionals:
The key message from the evidence: a communication breakdown shouldn't automatically be treated as belonging solely to the person with aphasia. Sometimes the greatest barrier isn't the person's impairment, it's the assessment method. That is exactly what Principle 2 asks us to consider.
There's no single checklist or technique that guarantees a robust assessment. Taking all practicable steps usually means continually adapting the approach in response to the individual in front of you.
Recently, I completed a Mental Capacity Assessment involving an individual living with severe expressive aphasia and apraxia of speech following a stroke. It became apparent very quickly that relying upon traditional questioning was unlikely to produce reliable evidence. Rather than expecting the individual to adapt to the assessment, the assessment had to adapt to them.
Interestingly, one particular adjustment that initially appeared helpful actually had the opposite effect. Another professional briefly joined the assessment to support communication. However, rather than facilitating discussion, the individual became noticeably more frustrated and communication became increasingly difficult. Once the assessment returned to a one to one conversation, communication improved considerably.
This experience reminded me that taking all practicable steps isn't simply about trying every possible adjustment. It is about continually evaluating whether those adjustments are genuinely supporting the individual or unintentionally creating further barriers. Not every reasonable adjustment will work for every person.
Ultimately, professional judgement is not demonstrated by asking more questions. It is demonstrated by being able to justify why you asked them in the way you did.
There's rarely a simple answer. But one of the clearest lessons from working alongside people living with aphasia is this: a person's communication impairment should never become the reason they're denied the chance to demonstrate their own capacity.
The Mental Capacity Act doesn't expect us to eliminate every communication barrier. It does expect us to take all practicable steps. Sometimes that's simple. Sometimes it means rethinking the entire approach.
Rather than asking "have I completed my assessment," it's worth asking:
These questions help me examine the quality of the support and the evidence. Answering yes to them does not, by itself, establish that all practicable steps have been taken or determine capacity. Where communication remains uncertain, further specialist input, including speech and language therapy where appropriate, may be needed before drawing a conclusion.
Nellie Supports provides independent, decision-specific mental capacity assessments for legal, health and social care matters. Our approach is person-centred and tailored to the individual’s communication and support needs.
Speak to our team about the decision, timescale and evidence required on 03339875118 or email nellie@nelliesupports.com
This article provides general information and is not legal advice. Capacity must be assessed in relation to the specific decision and at the material time. The appropriate steps and evidence will depend on the individual circumstances.
Does aphasia mean someone lacks mental capacity? No. Aphasia is a language disorder, not a capacity assessment outcome. Under Principle 2 of the Mental Capacity Act 2005, a person must not be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success.
What is Principle 2 of the Mental Capacity Act 2005? Set out in section 1(3), it requires that a person is not treated as unable to make a decision unless all practicable steps to support them in making it have been taken, and have failed.
Why are inconsistent yes/no answers not necessarily a sign of incapacity in someone with aphasia? Spoken responses may not reliably convey the person’s intended answer. Check the person’s communication with appropriate support and alternative methods rather than inferring a capacity finding from the inconsistency alone.
What adjustments help when assessing capacity in someone with aphasia? Slowing the pace of conversation, presenting one idea at a time, allowing extra processing time, using visual prompts or gesture, reducing distractions, checking understanding more than one way, and staying flexible if a strategy isn't working.
Does every reasonable adjustment help every person with aphasia? No. Adjustments need to be evaluated individually. An adjustment intended to help, such as involving an additional professional in the room, can sometimes increase frustration and make communication harder for that specific person.
Who should carry out a mental capacity assessment for someone with complex communication needs? The assessor needs relevant expertise in the particular decision and in adapting communication. A speech and language therapist may be needed to identify suitable support. The report should explain the methods used, their limitations and the basis for the conclusion.
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Published 10 August 2026
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