Balancing robust capacity assessments with person-centred practice: a tension at the heart of social work.

During a recent training session our team engaged in an interesting discussion surrounding how we as professionals balance this very tension within our practice. As Mental Capacity

Assessors, we are tasked with producing assessments that are robust, evidence-based, and

able to withstand scrutiny whilst at the same time, being bound by the principles of the Mental Capacity Act (2005) to remain person-centred, supportive, and least restrictive.

In practice, this creates a familiar tension: How do we ensure an assessment is sufficiently

thorough and defensible, whilst also recognising when continuing to question an individual may cause distress or overwhelm?

This question is a well recognised ethical and theoretical challenge within social work and

capacity law. Research into practitioners’ experiences consistently highlights this issue. Social workers often describe capacity assessments as navigating a “grey area” between thoroughness and emotional impact. While there is understandable pressure to produce assessments that will stand up in court, there is also a strong awareness that:

● repeated or persistent questioning can cause distress or fatigue,

● emotional overwhelm may undermine the reliability of responses,

● and the assessment process itself can risk becoming intrusive or coercive.

Capacity assessments involve professional judgement, interpretation, and relational

engagement particularly when applying the “use or weigh” element of the functional test.

The Mental Capacity Act itself embeds this tension. On one hand, it requires clear evidence of the functional test of capacity alongside transparent reasoning that can be scrutinised whilst at the same time demanding a presumption of capacity, active steps to support decision-making and a commitment to the least restrictive option. NICE guidance reinforces that assessments must be “structured, person-centred, empowering and proportionate.” Importantly, the law does not require us to pursue questioning at all costs. Instead, it expects us to act reasonably and proportionately, while maximising the person’s ability to engage.

So this begs the question: what do we do when continuing an assessment risks overwhelming or distressing the person but stopping might feel like we haven’t done enough?

It is important to recognise here that this isn’t just personal uncertainty. It’s something that has been widely recognised and researched in law and social work theory. In other words, if you ever feel like this it is important to know you are not alone.

So what should we do when someone becomes overwhelmed?

One of the most helpful ideas from recent research is the social model of mental capacity which suggests that capacity is not just something inside a person but that it is also hugely affected by their environment, relationships and emotional state. For instance, a calm, supported person may be able to weigh information but the same person, should they become overwhelmed, may no longer be able to weigh that same information. From this perspective, if someone becomes distressed during an assessment, it is not separate from capacity but in fact part of the evidence about how they are functioning in that moment.

Research also shows that good capacity assessments rely heavily on things such as trust,

communication and understanding, linking closely to relational practice. These approaches tell us that how we carry out an assessment is just as important as what we ask. For instance, if a person does become overwhelmed they may agree to end the conversation, disengage, or their answers may no longer reflect their true thinking. This would mean that continuing to question them could actually lead to the assessment being less reliable, not more.

The Mental Capacity Act requires us to take “all practicable steps” to support someone to make their own decision. Support might include: slowing the pace, using simpler language, taking breaks or involving someone the person trusts. Being able to document the support provided serves to strengthen your assessment by providing evidence that you have followed the law.

If someone becomes distressed, a strong and defensible response is to recognise that their

ability to engage is affected, consider whether continuing would reduce the reliability of

responses, adjust your approach (e.g. slow down, pause, simplify) and clearly document what happened and why. This shows you are applying both the functional test of capacity and the principles of the MCA.

My final thoughts:

Ultimately, the idea that we must choose between being person-centred and being legally robust is misleading. The evidence suggests something more nuanced in that capacity assessments are most defensible when it is relationally informed, ethically grounded, and context-aware.

In practice this means, recognising distress as part of the assessment, supporting the person to engage, knowing when to pause/ take breaks and clearly evidencing your reasoning. Ultimately, person-centred practice is not a barrier to defensibility, it is part of what makes an assessment valid, reliable, and lawful.

If you need a mental capacity assessment that is both person-centred and able to withstand legal scrutiny, our team provides mental capacity assessment services designed for families, solicitors and professionals. We specialise in expert capacity assessments for court or legal use, ensuring clear reasoning, structured evidence, and reports that are robust under challenge.

Abbie Cripwell

Social Worker and Expert mental capacity assessor