Aphasia and Mental Capacity Assessments: Have We Taken Every Practicable Step?

Abbie Cripwell
5 days ago
6 min read

"A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success." - Principle 2, Mental Capacity Act 2005, section 1(3)

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.

What is aphasia?

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:

Understanding spoken language
Finding the right words
Producing meaningful speech
Reading
Writing
Understanding complex information
Expressing their thoughts accurately.

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.

Why communication and decision-making are not the same thing

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.

But for some people with aphasia and acquired apraxia of speech, inconsistent yes/no responses are a recognised feature of the communication disorder itself, not evidence of impaired reasoning. Their intended response and their spoken response don't always match. If we accept the first answer at face value, we risk assessing the communication impairment rather than the person's actual mental capacity.

This is precisely why Principle 2 matters.

What does the research tell us?

Research into aphasia, including guidance produced by the Royal College of Speech and Language Therapists and NICE, consistently reminds us that communication is a shared process. Supporting someone with aphasia is not simply about adapting the individual. It requires us, as professionals, to adapt the way we communicate.

The evidence suggests that people with aphasia are more likely to communicate effectively when professionals:

Slow the pace of conversation
Present one idea at a time
Allow additional processing time
Use gestures, pictures or visual prompts
Reduce distractions
Check understanding in different ways rather than relying on one response
Remain flexible when one communication strategy isn't working.

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.

Adapting the assessment to the person

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

Information was broken into smaller sections
Questions were rephrased in different ways
Multiple-choice alternatives were used instead of relying solely on yes/no
Visual prompts were introduced, and verbal responses were considered alongside gesture and other non-verbal communication
Information was revisited later in the assessment to check consistency, rather than relying on isolated answers
Regular breaks were built in to reduce fatigue and frustration

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.

So how do we know we've done enough?

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:

Have I identified this person's communication needs before I began?
Have I adapted my communication throughout, rather than expecting them to adapt to me?
Have I offered more than one way for them to demonstrate their understanding?
Have I checked consistency rather than relying on isolated responses?
Have I allowed enough time for them to process information and communicate a decision?
Have I recognised when an adjustment wasn't working, and changed approach?
If this assessment were scrutinised tomorrow, could I clearly explain and justify every adjustment I made?

If the honest answer to all of these is yes, there can be far greater confidence that the assessment reflects the person's decision-making ability, not the barriers created by their communication difficulties. Perhaps that's how we know we've done enough.

Need a decision-specific mental capacity assessment?

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.

Frequently asked questions

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? For some people with aphasia and apraxia of speech, a mismatch between an intended response and the spoken response is a recognised feature of the communication disorder itself, not evidence of confused or impaired reasoning.

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? Assessments should be carried out by professionals experienced in adapting their approach to the individual's communication needs, and able to provide clear, evidence-led justification for every adjustment made, including in court-ready reports where required.