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Fluctuating capacity and the Principles of the Mental Capacity Act (2005)

Updated: Apr 21, 2023

What is fluctuating capacity?

When working with individuals you may notice that their decision making can be very different from one day to the next. You may also notice that an individual may be able to tell you to the last penny how much they have in savings, trusts, stocks, and shares but does not know what day or year it is and how to manage their health and social care needs. An individual may be able to make decisions in the morning but by lunchtime, their dementia or condition may limit their abilities. Fluctuating capacity can depend as much as the condition itself and be entirely individual to the person with the impairment to the mind or brain.

Why is this important?

There is a lot of discussion regarding fluctuating capacity, and a lot of information regarding what to do when faced with assessing an individual who has fluctuating capacity. As a practitioner, it can become quite complex when faced with a situation of this sort. Everyone who carries out Mental Capacity assessments knows to refer to the principles of the act.

1: A presumption of capacity. ...

2. Individuals being supported to make their own decisions. ..

3: Unwise decisions. ...

4: Best interests. ...

5: Less restrictive option (Mental Capacity Act, 2005)

So, let us consider principle 1, a presumption of capacity, this is important as you as the professional would have to ensure that you have evidence to suggest that this individual does not have capacity. Because capacity is a given, ok so let us consider the complexities of fluctuating capacity. As a professional, you are going to be faced with this on quite a lot of occasions so making sure that you are assessing with integrity and adhering to the individual’s human rights is a must. It is as this point you have to consider the larger picture or as one of my University Lecturers used to say, “put the pieces of the jigsaw together to see the whole picture”.

What is legal and ethical?

50 […] Paragraph 4.4 of the Code of Practice says that an assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made and not their ability to make decisions in general. (COP team 39 Essex Chambers, p:7).

Decisions need to be based on legislation; however, the legislation is not a catch-all in this situation. If you are adhering to the principles, then you are working correctly but it is not always the only thing you have to consider in a situation where someone’s capacity may fluctuate.

For example, an individual may present with the capacity to make a specific decision at the specific time around health needs, you assess them as having capacity, yet they have previously self-neglected and have been hospitalised because of this. Are you likely to just consider this assessment as a stand-alone and not consider the risks to the individual?

There is case law available to guide you if you find yourself in this situation and my advice would be to ensure that you are fully versed on the specific case law concerning the decision. Consideration in the above situation could be given to the case of RB Greenwich v CDM [2018] EWCOP 15 (Cohen J) (COP team 39 Essex Chambers, p:1).

I have recently found myself assessing a very varied range of decisions with individuals with varying impairments to the mind or brain. I have to admit that case law in these situations has been my saviour. If you are unsure then there is usually some clarity to be found in other individuals’ decisions. I’m not saying that the Mental Capacity Act (2005) should be ignored, what I am suggesting is that in certain situations more clarity is required, and the other cases could be just what a professional needs to provide an in-depth and legal decision.

Louise Thornton - Independent Social Worker @ Nellie Supports.

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