Mental capacity refers to an individual’s ability to make decisions for themselves. However, this ability is not always fixed. Some people experience fluctuating capacity, where their decision-making ability varies over time due to health or environmental factors.
Understanding when and how capacity changes is important, especially during a mental capacity assessment. This blog explores what fluctuating capacity means, what causes it, and how to assess it effectively in line with the Mental Capacity Act 2005 (MCA).
What Is Fluctuating Capacity?
A person has fluctuating capacity when their ability to make a specific decision varies, either throughout the day or over longer periods. These changes may be linked to:
- Dementia or brain injury
- Delirium, infections, or high blood sugar
- Withdrawal from medication, alcohol, or illicit substances
- Mental health conditions such as psychosis, anxiety, or depression
For example, a person with dementia may be lucid and responsive in the morning but struggle to understand or process decisions later in the day. Similarly, someone experiencing a mental health relapse may have good and bad days where their ability to weigh up decisions fluctuates significantly.
Why Does Fluctuating Capacity Matter in Mental Capacity Assessments?
Mental capacity is decision-specific and time-specific. This means a person may have the capacity to make one decision today but lack it tomorrow, or vice versa. During an assessment, mental capacity assessors must carefully consider these changes and evaluate the person at a time when they are most likely to understand and retain information relevant to the decision, and weigh the pros and cons of the available options.
Failure to recognise fluctuating capacity could lead to inaccurate conclusions and assessment decisions. This risks undermining the individual’s autonomy.
How Does the Mental Capacity Act 2005 Support People With Fluctuating Capacity?
The Mental Capacity Act 2005 and its Code of Practice require assessors to take all practical steps to help a person make their own decisions. This includes determining whether capacity is temporarily impaired or likely to improve, and adjusting the timing of the assessment accordingly.
Some practical steps include:
- Identifying whether any infection, pain, or physical condition is affecting the brain or cognition
- Confirming if the person is receiving treatment and when improvements in mental state are expected
- Waiting for a time of day when the person is more alert or less distressed
- Involving family, carers, or professionals who can describe capacity patterns over time
Emergency vs Non-Emergency Decisions
Emergency Situations
If a decision is urgent, such as treating a serious infection or preventing harm, the assessment must be carried out based on the person’s current state, even if their capacity is impaired. In these cases, acting in the person’s best interests is paramount.
Non-Urgent Decisions
If the decision can wait, such as arranging a Lasting Power of Attorney, making a Will, or supporting someone with managing finances, it is often best to delay the assessment. This gives the person the best chance of understanding the information and expressing their preferences.
Professional Insight: Referrals Involving Fluctuating Capacity
Mental capacity assessors are often asked to conduct assessments when the person is at their most confused and disoriented. The rationale is to show the degree of impairment. However, this approach does not align with the legal or ethical principles of the Mental Capacity Act 2005.
An experienced mental capacity assessor from OFH Care explains:
“We sometimes receive referrals requesting that assessments be done when the individual is visibly confused, to make the impairment clear. While we understand the intention, this does not offer the individual a fair opportunity to participate in the decision-making process.”
Instead, assessors are encouraged to consider the person’s best chance of capacity. This approach respects their rights and supports their involvement in decisions about their own lives. To help others understand this, assessors often use relatable examples:
“If you had lost capacity due to an illness, would you want a life-changing decision, like moving out of your home, made when you were at your lowest point? Or would you prefer to be assessed when you were more aware, so your voice could be part of the outcome?”
Supporting people with fluctuating capacity is not about removing their autonomy; it is about creating the space where they can be safely and meaningfully involved.
Key Takeaways When Dealing with Fluctuating Capacity
- Fluctuating capacity is common in many physical and mental health conditions.
- Assessments should be timed to reflect the individual’s best chance of engaging.
- Emergency decisions must still be made if delay would cause harm.
- Referrals should prioritise person-centred, rights-based approaches.
- Professionals must adhere to the principles of the Mental Capacity Act 2005 at all times.
Conclusion
Fluctuating mental capacity presents unique challenges, but it also offers opportunities for safeguarding vulnerable people. With the right approach, mental capacity assessors can ensure that individuals are respected, supported, and, whenever possible, included in decisions that affect their lives.
Do you need to refer someone for a decision-specific assessment for Court of Protection matters? Email us at admin@ofhcare.co.uk or complete our online form to schedule an assessment.