Fluctuating capacity is when a person’s ability to make a specific decision changes frequently or occasionally. Such changes could be brought on by the impact of a mental illness, physical illness, the use or withdrawal of medication, the use of illicit substances or alcohol. For example, some people with dementia or a brain injury have moments in the day when they are more lucid and able to make certain decisions and, other times when they are unable to make particular decisions for themselves. Similarly, a person with certain infections, delirium or excessively high blood sugar levels may experience confusion and other cognitive difficulties that can cause changes in their mental capacity. In some cases, the worsening of a mental illness or relapse in a person’s mental health could result in them experiencing fluctuations in mental capacity.

It is important therefore during a mental capacity assessment to be mindful of clients with fluctuating capacity because this can have a significant impact on the assessment as a whole and the outcome.

The Mental Capacity Act 2005 (MCA) and the Code of Practice (MCA COP) set that practicable steps need to be taken to support the person with decision making. Such practicable steps could include finding out if the person’s confusion is sudden or, if it has been brought on by an infection or other causes. Whether the state of confusion is sudden or ongoing, the mental capacity assessor should find out whether there are times when the person is more lucid in order to carry out the mental capacity assessment then. This gives the client the best chance of participating in the decision-making process. If the client has an infection, it would be beneficial to find out whether the person is in receipt of treatment and if so, when the infection is likely to be treated and the impact of this on the person’s cognition alleviated. Again, this may help to determine the best time to carry out the capacity assessment.

If a decision needs to be made in an emergency and it is not possible to wait for a time when the client is likely to be able to participate in the decision-making process, the capacity assessment should be carried out. For example, if the decision pertains to treating any infection that may be adding to the person’s confusion or if the person requires emergency medical treatment without which their life or limb could be at risk.

Where the decision is not urgent, for example, deciding who should be included in the person’s Will, deciding where to receive ongoing support, or how they should be supported with managing their finances, the assessment should be delayed until the client is likely to be able to engage as best as possible. This is because the law and guidance on assessing mental capacity states that all must be done to support a person with making decisions. This applies even if a person has been assessed as lacking capacity to make the particular decision previously. In this instance, the person’s views and wishes must still be sought and considered, if a decision is being made by other people on the person’s behalf.

We often receive referrals where the referrer requests that the mental capacity assessment is carried out when the person is most confused so that the level of their confusion can be obvious to the mental capacity assessor. Although I understand why some people may think that is necessary, I will always explain to the referrer that this does not give the client the best chance of saying how they will like to be supported with making the particular decision. My favourite analogy I use often is to ask what the referrer would like to happen if the tables were turned. Let’s say you had lost capacity due to an illness or another cause, and a decision was being made to move you from the home you’ve lived in all your life and cherish, would you want to be involved in deciding whether something could be done to help you remain in your home with the right support, or would you be happy for someone else to make the decision for you, without thinking about what you would want, what the options are or even asking your opinion?

Mental Capacity is about supporting people who for one reason or another, are unable to make certain decisions for themselves, rather than taking such decisions away from them completely.

OFH Care, Experts in assessing Mental Capacity
0333 939 8032