Hi question is someone with known and tested capacity be repeatedly tested it people keep asking for more. It feels a bit like they will keep going until they get answers they want to hear.
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Situational details required for my war room to compute trajectory of missiles. 
Ready and waiting. Finger on the button. 
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Firstly as the Code of Practice for MCA (2005) states, only individuals with input into a patient/client/service user care can undertake a MCAA. Otherwise everyone will be undertaking MCAA. Next a court can request a MCAA be undertaken depending what one is asking for.
If a MCAA is being undertaken for example medication compliance, adjacent to DoLS. Then a review date should be included so that it is not being repeated QDS. Otherwise abuse of the patient/client in conjunction to their HRA (1998).
One only has to look at a recommendations for s.2 or s.3 to note that Drs will say, ‘lacks capacity for informal admission or medication compliance.’ But it is never comprehensive to say what did the patient say or did the Dr asked succinctly. So, besides digressing to far.
No one should be repeatedly be asking for MCAA till they got what they want. It would be an abuse of the MCA (2005), it’s code of practice and the patient’s HRA (1998). Not withstanding the advocate of the patient’s questioning this type of practice (hopefully). No point relying on CQC to deal with this sort of action!
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Of course, the ‘land of should’ is a wonderful place! 
And that’s the reason why ‘everybody’ can get away with all sorts of things.
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Dear Russell and Kyle
this is what it feels like as person is physically disabled and has always been deemed as having capacity he is not old does not have dementia and it is ICB wants a capacity test done on residence and care. the notification was 08.36 am that GP would be visiting for ten minutes to assess capacity.
the person has cerebral palsy and dystonia which when anxious he cant speak. Residence capacity is different as reading into it to remove someone from home needs at least 6 capacity tests. If he sneezes someone wants a capacity test
it does feel as if they have now had two tests both positive and they want a third which in 30 mins will accomplish nothing and is manipulating the patient
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Edge have put this interesting case regarding capacity. Worth a perusal.
CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3) (12 February 2025)
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Excellent case! CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3) (12 February 2025)
Unfortunately, it’s late. I’ve been saying the same things for the last 5 years. But then again - I’m NOBODY. The way the Empire is ruled is by authority which prevails over logic.
So if you’re nobody, your logic means nothing. If you’re a judge or a court, your logic means something.
I know about that! A few years ago, I had a severely autistic/LD and very low functioning patient who needed to be placed in a purpose-built home.
The approach of ‘some’ (choice adjectives withheld) was that ‘they’ wanted capacity testing for ‘everything’ e.g. opening the door, opening a window, brushing teeth, going to toilet and cleaning up (among a much longer list that would have been 5 pages of A4).
Apparently - the law is an ass (common figurative terminology so I’m not insulting a court or the law). The law wanted capacity to be decision-specific. So each action was interpreted as requiring a specific cognitive decision. Can anyone blame people for requesting zillions of capacities? I’m eating a cheese in croissant right now! Ahhh… how many decisions involved:
- Capacity to put cheese in a croissant
- Capacity to choose which type of cheese and which croissant.
- Capacity to hold the two in hand
- Capacity to put same into mouth.
- Capacity to chew.
- Capacity to swallow.
- Capacity to belch!
- not a full list of course - stated to illustrate how ridiculous capacity testing can become.
If the ICB wanted that - they are wrong! How? Many around this land are using ‘capacity’ as a ‘state of mind’ - it isn’t. It is a decision-making ability. No one can lawfully test capacity ‘on residence and care’. Of course not everybody will believe me. I have to remember that I am actually NOBODY - so I’ll have to wait probably a few years for a judge to say the same thing, at which point no one will have memory of what I said.
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I agree with nearly everything that has been said in this thread, and the practice does sound poor. However, Russell when you say:
I am not sure you are correct in that regard… Please see, Liverpool City Council v CMW [2021] EWCOP 50. On the facts of that case, Sir Mark Hedley observed (at paragraph 15) that “It would be artificial, and indeed wrong, in the case of CMW not consider residence and care together. It is her fundamental inability to grasp why she needs support and what would happen if she did not have it that underpins my finding that she lacks capacity in both these areas. She could not choose between packages of care because she seriously overestimates her ability to protect herself and seriously underestimates her own vulnerability.”
See also Re CLF (Capacity: Sexual Relations and Contraception) [2024] EWCOP 11 at paragraph 37 where, again on the facts of the case before him, Poole J identified that “Care is not simply a “given”: the choice of residence will itself determine the level and kind of care required.”
Reference for the above Mental Capacity Guidance Note - Relevant Information for Different Categories of Decision May 2024.pdf (page 3 and 12 footnote)… See also, Residence, care, sex and marriage: an (unusual) successful appeal on capacity – Mental Capacity Law and Policy “In the context of a person with care needs, I would strongly suggest that it would be an unusual case in which it is possible to address residence and care separately without falling into the hole between two silos (to mix metaphors).”
Suzanne, you might find some of the guidance here helpful for challenging some of the bad practice you are experiencing/witnessing - Mental Capacity Guidance Note: Assessment and Recording of Capacity | 39 Essex Chambers, in particular, paragraph 13. Finally, the very act of deciding to carry out a capacity assessment is not, itself, neutral, and the assessment process can, itself, often be (and be seen to be) intrusive. You must always have grounds to consider that one is necessary.
What I actually and factually said in full context
The word ‘choose’ was in there - which is about ‘decison-making’. I have no problem with that.
As I am NOBODY - no one will pay attention to the specifics - until one day a judge says exactly what I am saying, cuz a judge is ‘somebody’.
Today for example in doing scrutiny of Section forms I came across. "[P].. did not display capacity for engagement with home treatment" - as a reason for detention in a ‘capacity’ test.
That’s WRONG! Why? There is no ‘capacity for engagement’ anywhere. All capacity is for ‘decision-making’ - making a choice as per all aspects of S3 MCA 2005, if one is talking proper capacity.
Decision-making is a cognitive choice among options e.g. go left or go right, cross the road now, or wait.
People across this land are using capacity as a state of mind. It just isn’t. Don’t believe me - read the law.
So anything like 'capacity on residence and care’ is wrong - as is ‘capacity for engagement’. When such words are used, there is no indication of a choice or a decision. One may of course infer whatever into what is said or on paper. The slips of mind an slippage of meanings put into text is telling. When I have examined many capacity assessments on a range of things, I do not often see testing of decisions.
Another example is the very common, “capacity to manage financial affairs” (as stated on many a so-called ‘financial capacity assessments’. What normally follows in the text of such assessments in ‘my unholy necks of woods’, is no actual testing of decision-making capacity for decisions about financial affairs. Furthermore ‘financial affairs’ is a massive basket - from purchasing a sweet at an corner shop to engaging in mortgages. ‘People’ focus on ‘unwise’ decisions and irresponsiblility in their ‘financial affairs’ capacity assessments. I see it all the time. That’s the culturally accepted norm - nobody cares or dares to challenge these types of assessments. Nobody has time or money to challenge them. The culture is much bigger than me - so I’m wrong - that’s how it works. Hence lessons from ‘The Herald of Free Enterprise’ are totally lost in history - about cultures.
Memories may be short - as not many who were around are still around - to recall the days of Form 38 and Form 39. - when P had the capacity for treatment (or not). When I had asked way back then, “why is it the case that a patient cannot be on both?” - I would often be told “That’s not how it works - if they are not of capacity for one treatment then they lack capacity for any treatment (medication of course).” The concept used back then was a ‘state of mind’; not truly decison-making capacity. Quietly - the forms were changed and policy changed so that a person could then be on both the new T2 and T3 forms. Of course nobody remembered what I had said.
And today the same thing is happening - ‘people’ are considering ‘capacity’ in an overly paternalistic sense as a state of mind, when cognitively they must know that at the heart of capacity is autonomy to decide on one’s choices (and cognate words).
I hope I’m still around one day when a court pulls up everybody’s socks.
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Thankyou everyone for your answers as when these cases happen professionals seem to look at procedure and processes and forget there is a human being at the end of all this. People are not a diagnosis first and a human being second but labels are put on people and you often hear the diagnosis first to describe people
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Totally my observations as well. I’m afraid this harks back to the days of ‘mental defectives’ and ‘lunatics’ as described in legal history. The law was meant to move minds of people forward into the 21st Century and beyond. However, cultural mindsets are not so easy to move.
My sense is that the cultural mindset has a fundamental bias the the ‘lunatic’ needs paternalistic care. [Caution: I’m using these terms for a reason - only to show the mindset. I don’t call people ‘defectives’ or ‘lunatics’.]
The MHA 1983 (Amended 2007) is a poor twisted extension of the 1959 Act. It’s concept of capacity is inherently different from that of the MCA 2005.
Comparison of Capacity – MHA 1983 v MCA 2005
| Aspect | MHA 1983 | MCA 2005 |
|---|---|---|
| Definition | Understanding nature/purpose/effects as certified (not demonstrated) | Understand, retain, weigh, communicate |
| Presumption of Capacity | No statutory presumption [No statutory requirement to assist or facilitate capacity] | Presumed unless disproven |
| Communication | Agreement is not a specific requirement. | Required |
| Threshold | Binary | Decision-specific |
| Scope | Detained patients and some patients on CTOs. Mental disorders only. | All adults, all decisions (except where other legislation has priority. |
| Fluctuating Capacity | Implicitly addressed via snapshots | Recognised |
Caution: The CQC is not a law making body. It has grafted MCA 2005 principles onto capacity assessments under MHA, with no authority to do so by Parliament.
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Hi Russell, I do not disagree with many of your points, I suppose my concern in practice is more around the person not being provided the information relevant to
the decision and/or the person not being provided all practicable support to understand, retain and use/weigh that information (including options) relevant to said decision, which i think is also a point you are making as well.
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Dear James and Russell
you both make excellent points the one is am interested in is about giving the information that an ICB have arranged a capacity test without giving the information and all the steps to be taken. And it is arranged with a GP who is unknown to the person and the decisions we are assuming are capacity to residence and capacity to care. The person has capacity but disability can impair ability to speak. Due to high tone and spasticity. going on another very disabled man Stephen Hawking’s who was one of the greatest minds of this century he used a communication aid with a muscle in his cheek. Sometimes professionals can look at the cover of a book and not read one page to see what the book is about. 30 mins with person who is able bodied, able to communicate is different to when they are already challenged by their disability which seems to be used against them.
But then what do I know
regards
Suzanne
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Hi Suzanne, you might find some of the following helpful in challenging any of the practice you see (main reference for the below Mental Capacity Guidance Note: Assessment and Recording of Capacity | 39 Essex Chambers, see also Chapter 3 Mental Capacity Act Code of Practice - GOV.UK, which covers ‘How should people be helped to make their own decisions?’):
28 Fifth, to comply with s.1(3) MCA 2005, you must take all practicable steps to help P before concluding that they are nevertheless unable to make a decision. And, importantly, consider why is it that you were unsuccessful in enabling P to decide despite those steps having been taken? This will include asking yourself – and being in a position to record – the answers to questions such as:
• What is the method of communication with which P is most familiar (is it, for instance, a pointing board, Makaton or visual aids)?
• What is the best time of day to discuss the decision in question with P?
• What is the best location to discuss the decision in question with P?
• If you do not know P, would it assist to have another person present who does (and, if they do, what role should they play)?
• Has P made clear (in whatever fashion) that there is someone that they would like to be present, or someone they would really like not to be present?
• What help does P require to learn about and understand the information relevant to the decision? For instance, does P need to be taken to see different residential options? Have you explained to P all the pieces of information that you have identified as being relevant to the decision?
• Is it possible to complete the assessment in one go, or is it necessary to come back and see P on more than one occasion, even if only to put P at their ease and help them engage with the process?
• And, perhaps above all, is there something that you can do which might mean that P would be able to make the decision? Depending upon the circumstances, this could range from simply waiting, to undergoing work with P to assist them to understand the relevant information, to helping the person to understand that they can even make decisions: as an expert identified in one case observed “in order to make a decision, first one needs to be aware that one is in a position to do so” – this is particularly important in situations where a person has never been given the opportunity to make decisions.
[…]
74 In more detail, a good record of a capacity assessment will show that you have:
• Been clear about the ‘matter’ that P is being asked to decide upon, and what decision they are being asked to take;
• Identified why you have reason to doubt their capacity to make this decision (nb, this is just as important where the outcome of the assessment is that you consider that they have capacity);
• Identified the salient and relevant details P needs to understand/comprehend (ignoring the peripheral and minor details);
• Ensured P (and you) have the concrete details of the choices available (e.g. between living in a care home and living at home with a realistic package of care);
• Avoided the protection imperative;
• Demonstrated the efforts taken to promote P’s ability to decide and, if unsuccessful, explained why;
• Recognised that assessment is not necessarily a one-off matter, and that you have taken the time to undertake to gather as much evidence as is required to reach your conclusion – including, for instance, returning to have a further conversation with P or obtaining corroborative evidence (particularly important in the case of deficits in executive functioning);
• Evidenced each element of your assessment:
(i) Why could P not understand, or retain, or use/weigh, or communicate in spite of the assistance given?
(ii) What is the impairment/disturbance? Is it temporary or permanent
(iii) How is the inability to decide caused by the impairment/disturbance (as opposed to something else)?
• Answered the question: why is this an incapacitated decision as opposed to an unwise one?
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Totally!
We all know (or ought to know) what’s wrong with the system(s).
Some may see a pattern ‘across the Empire’:
- Police
- Education
- Health
- Social care
- Finance industries
- Politics
On a related note to the above pattern, how many prosecutions have their been under S127 MHA 1983 (Amended 2007)? How many prosecutions by the CQC under Health and Social Care Act (which covers duties to by Trusts to have capacity/consent adequately assessed)? Google won’t provide you with hundreds in each category. You may be lucky to find this one University Hospitals Birmingham NHS Foundation Trust pays fixed penalties of £8,000 for failures around consent - Care Quality Commission
I’ll soon be finding out the full scale of inertia - I hope - via FOIA requests.
When no one is looking, no one is checking, no one is holding anyone to account - the law becomes a toothless tiger.
Rights - especially in the UK - are ‘cheap’ unless you’re fortunate enough to get to the Supreme Court and be awarded £5 million [Montgomery 2015].
Brilliant!! 
Thanks for sharing. It’s great to share info.
I can tell you now, that ‘nobody’ is doing all that Mental Capacity Guidance Note: Assessment and Recording of Capacity | 39 Essex Chambers - except me of course - but then again I am NOBODY. 
There are two kinds of ‘nobodies’.
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I have to agree with you it seems public bodies follow the bits they like and totally ignore the rest of the bits which maybe relevant.
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Dear James
Simple question how do I get. icb to send information to P otherwise he is just being ambushed in two weeks
Suzanne
My ideas would be:
- Support P to request the ‘relevant information’ beforehand
- Request (with P’s agreement) that he is supported by an advocate
- P, can choose to refuse to engage in the assessment (see I am finding it difficult to engage the person - Capacity guide)
- Support P to ask why they doubt his capacity to make the relevant decisions
- Support P to ask how his communication needs (if there are any) would be met in the assessment.
- Lastly, do use some of the guidance provided in the some of the resources already mentioned to challenge any poor practice that you might see.
Hope that helps a bit.
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