Mental Capacity Assessments

Mental Capacity Assessments

We receive regular requests from solicitors asking us to assess whether their client has mental capacity.

Capacity assessment isn’t a medical task Under the Mental Capacity Act 2005, anyone can assess capacity — and routinely, non-clinicians do exactly that. A care worker in a residential home makes capacity decisions dozens of times a week: if a resident refuses a wash, the care worker has to decide whether that refusal reflects a genuine, capacitous choice or whether it doesn’t. That’s a capacity assessment. No doctor involved!

Solicitors are well placed to make these assessments themselves. They are professionally trained, they know their client, and they are in the room. The Law Society’s guidance on working with clients who may lack capacity makes this clear — seeking a medical opinion is the exception, not the default.

A mental capacity test is functional functional and decision-specific Capacity under the Act is assessed against a specific decision at a specific time. The question isn’t “does this person have dementia?” — it’s “can this person, right now, understand, retain, and weigh up the information relevant to this decision, and communicate a choice?”

A diagnosis doesn’t answer that question. A thoughtful professional who has met the person and knows the decision at hand is often far better placed to answer it than a GP who sees the patient once.

“I’ve assessed his capacity in a face-to-face appointment and concluded he lacks capacity because of lack of understanding, retention, ability to weigh up, or communicate.”

A solicitor who has met the client is entirely empowered to write this.

When we will help There are cases where medical input genuinely adds something — where the diagnosis itself is uncertain, where there’s a question about whether a condition is fluctuating, or where the legal proceedings require formal evidence. In those situations, we’re happy to discuss whether a clinical assessment is appropriate and what it would involve.

But where a client has a known diagnosis, has been assessed recently, or where the facts are straightforward, we’d encourage solicitors to feel confident in making the assessment themselves. That’s not a limitation — it’s the law working as it was designed to.

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