Mental capacity assessment records

The Mental Capacity Act 2005 and its five principles

The Mental Capacity Act 2005 (MCA) applies in England and Wales to everyone involved in the care, treatment or support of people aged 16 and over who may be unable to make some or all decisions for themselves. It is supported by the Mental Capacity Act Code of Practice, which paid care staff, nurses, doctors and social workers acting in a professional capacity must have regard to. For registered providers, Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 makes it a fundamental standard: care and treatment "must only be provided with the consent of the relevant person", and where a person aged 16 or over lacks capacity to consent, "the registered person must act in accordance with the 2005 Act".

Section 1 sets out five principles, and every capacity record is, in effect, evidence that they were followed:

1. "A person must be assumed to have capacity unless it is established that he lacks capacity."
2. "A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success."
3. "A person is not to be treated as unable to make a decision merely because he makes an unwise decision."
4. An act done or decision made on behalf of a person who lacks capacity "must be done, or made, in his best interests".
5. Before acting, "regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action".

Capacity is decision-specific and time-specific. The Act asks whether the person lacks capacity "in relation to a matter" "at the material time". A person with dementia may be able to decide what to wear and unable to decide whether to sell their house; a person may lack capacity in the morning and have it in the afternoon. A record that says "lacks capacity" without naming the decision is not a capacity assessment at all, and the Act is explicit that a lack of capacity cannot be established "merely by reference to" a person's age, appearance, condition or behaviour.

When a capacity assessment is needed, and who does it

Because the starting point is a presumption of capacity, an assessment is needed only where there is a reason to doubt that the person can make the particular decision. In a care home, supported living service or a person's own home, that doubt typically arises around:

• where the person lives, a move into a care home, or a return home from hospital
• consent to care and treatment, including personal care the person resists, medication, and any proposal to give medicines hidden in food or drink
• restrictions such as a locked door, a sensor mat, bed rails or one-to-one supervision, which may raise questions under the Deprivation of Liberty Safeguards
• managing money, and whether a lasting power of attorney or a deputy is in place
• contact with particular people, and relationships
• sharing information about the person with family or other services

The person who assesses capacity is normally the person who needs the decision made: the decision-maker. The Office of the Public Guardian's guide for health and social care staff says the decision-maker "normally will be the carer responsible for the day to day care, or a professional such as a doctor, nurse or social worker where decisions about treatment, care arrangements or accommodation have to be made". So a support worker assesses whether a person can decide to have a shower now; a GP assesses capacity to consent to a new medication; a social worker leads on a move. Where the decision is complex or disputed, the decision-maker may ask for help from a speech and language therapist, a psychiatrist or a psychologist, but the responsibility stays with them.

Some decisions are not for care staff to assess at all. Capacity to make a will is judged by a long-standing common law test rather than the section 3 test alone, and a solicitor drawing up a will or a lasting power of attorney for a resident will usually ask a doctor to assess it. Staff may be asked what they have observed; the record should give those observations factually, and staff should not be asked to sign a view on testamentary capacity they are not qualified to give.

If the person has a registered lasting power of attorney for health and welfare, or a deputy appointed by the Court of Protection, covering the decision, that person makes it, and the record should say so and note that the document was checked. Where the NHS proposes serious medical treatment, or the NHS or a local authority arranges accommodation in a hospital or care home or a move to another one, and there is no one other than paid carers whom it would be appropriate to consult, sections 37 to 39 require an Independent Mental Capacity Advocate (IMCA) to be instructed.

The two-stage test

Section 2(1) defines the test in one sentence: a person lacks capacity in relation to a matter "if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain". It does not matter whether the impairment or disturbance is permanent or temporary, and the question is decided "on the balance of probabilities". Practitioners call it the two-stage test, because it has two parts.

The functional test. Section 3 says a person is unable to make a decision if they are unable:

1. "to understand the information relevant to the decision"
2. "to retain that information"
3. "to use or weigh that information as part of the process of making the decision", or
4. "to communicate his decision (whether by talking, using sign language or any other means)"

A person who can understand an explanation given "in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)" is not unable to understand it. Retaining information "for a short period only" does not prevent a person being able to decide. And the relevant information includes "the reasonably foreseeable consequences" of deciding one way or another, or of not deciding at all. The assessor must therefore work out, before the conversation, what the relevant information actually is for this decision, and not set the bar higher than a person with capacity would need.

The diagnostic element. The inability must be "because of" an impairment of, or disturbance in the functioning of, the mind or brain, such as dementia, a learning disability, a brain injury, a mental illness, delirium, or the effects of alcohol or drugs. The Code of Practice, written in 2007, presents this part first. The Supreme Court in A Local Authority v JB [2021] UKSC 52 held that the two questions in section 2(1) "are to be approached in that sequence": first whether the person is unable to make the decision, then whether that inability is because of the impairment, looking for "a clear causative nexus" between the two. The order matters less than the link. A capacity assessment record that lists a diagnosis and then a failed functional test, without saying why the one caused the other, is the gap most often criticised when records are examined.

Before concluding that a person lacks capacity, section 1(3) requires "all practicable steps" to help them decide: choosing the time of day when they are most alert, a quiet place, a familiar person, an interpreter, pictures, hearing aids and glasses, time to think, and a second attempt. The record has to show which were tried, because a person who could have made their own decision with the right support to make it, and was not given that support, has been treated as lacking capacity unlawfully.

What a mental capacity assessment record must show

The OPG guide is clear that "You should be able to show in your records why you have come to the conclusion that the person lacks capacity to make the particular decision", and that records "might in the future be referred to if there is a dispute or as part of legal proceedings". It also says that "whether and how such assessments are recorded may vary according to the seriousness of the decision made". Everyday decisions can be recorded briefly in the care plan or daily notes; significant ones need a full assessment record. A full record shows:

1. The decision, stated specifically ("whether to move from her flat to a residential care home", not "accommodation"), and why capacity was in doubt.
2. The date, time, place and who was present, and who the assessor is and in what role.
3. The relevant information the person needed to understand, including the options and the foreseeable consequences of each.
4. The practicable steps taken to support the person to decide, and any adjustments to communication.
5. The functional test: for each of understand, retain, use or weigh, and communicate, what was said and done, in the person's own words where possible, and the conclusion on each.
6. The impairment and the causal link between it and the inability.
7. The conclusion on the balance of probabilities, and whether the person is likely to regain capacity, and when.
8. Who was consulted and what they said, including any LPA or deputy, and whether an IMCA was needed.
9. When it will be reviewed.

The example also shows the most common error in reverse: recording a person as having capacity needs the same evidence as recording that they lack it. A person who refuses care and is recorded as having capacity to refuse, with the evidence, has been treated lawfully. A person who refuses care and is recorded as "non-compliant" has been treated as a problem.

Best interests decisions and their record

If the person lacks capacity for the decision, the decision-maker must decide in their best interests, following the checklist in section 4. They must not decide "merely on the basis of" the person's age, appearance or condition, and must consider all the relevant circumstances, in particular:

• whether the person is likely to regain capacity, and if so whether the decision can wait
• permitting and encouraging the person "to participate, or to improve his ability to participate, as fully as possible"
• the person's "past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity)", their beliefs and values, and the other factors they would consider
• the views of anyone the person named to be consulted, "anyone engaged in caring for the person or interested in his welfare", any attorney and any deputy
• for life-sustaining treatment, that the decision-maker is not motivated by a desire to bring about the person's death
• whether a less restrictive option would achieve the purpose as effectively (section 1(6))

The best interests record should show each of those, the options considered with their benefits and burdens, the decision and who made it. The OPG guide puts it plainly: "you will need to clearly demonstrate in your record keeping that you have made a decision based on all available evidence and taken into account all the conflicting views". Where family members disagree, the record should say so and show how their views were weighed; where the decision goes against the person's expressed wishes, it should say why.

Recording matters for the staff member as well as the person. Section 5 protects a person who does an act in connection with care or treatment from liability they would not have had if the person had consented, provided that before acting they took "reasonable steps to establish" whether the person lacked capacity and reasonably believed the act was in their best interests. The record is what shows those reasonable steps. Where the arrangements may amount to a deprivation of liberty in a care home or hospital, the Deprivation of Liberty Safeguards also apply; the definition of deprivation of liberty changed after the Supreme Court's judgment of 2 June 2026, and the Department of Health and Social Care has published an update explaining the change. What that process requires on paper is in our guide to DoLS record keeping.

The consultation that happened by text

A capacity or best interests record is only as good as the evidence behind it, and much of that evidence arrives informally. The daughter who texts the registered manager on a Sunday: "Mum always said she'd never go into a home, but she's frightened at night now." The support worker who messages the team lead after a visit: "He told me twice today he doesn't want the new tablets, he says they make him sick." The son who replies in a family group the key worker was added to: "Dad would want to stay in his own home whatever the risk." The GP's view, given in a phone call and summarised to a colleague in a direct message.

Every one of those is something section 4 requires the decision-maker to take into account: past and present wishes and feelings, the views of family and carers. When they live on staff members' personal phones, the formal record says "family consulted" with nothing behind it. If the decision is challenged, by a relative who disagrees, an IMCA, a best interests assessor or the Court of Protection, the service cannot show what it was told, when, or how it weighed it. The staff member who received the text may have left.

ComplyChat gives those work conversations a channel the organisation holds, including with families: a mobile number verified by SMS is an identity on it, so relatives, bank staff and support workers with no work account can be in the same channel, and everyone added is told the channel is on the record and can object or leave. Messages are recorded on the server as they are sent, and on paid plans the lasting record files into the organisation's own Microsoft 365 once the tenant is connected. It does not assess capacity and it is not a care record; the assessment still has to be written up where the care plan lives. What it changes is that the daughter's message about her mother's wishes is still there when the decision is examined.

A question for the next managers' or board meeting: for the last significant best interests decision your service took, could you produce what the family actually said, in their words and with the date, or only a note that they were consulted?

Official guidance and your next step

The primary sources are the Mental Capacity Act 2005, sections 1 to 5 in particular, the Mental Capacity Act Code of Practice, and the Office of the Public Guardian's guide for people who work in health and social care, last updated 19 May 2026. SCIE's Mental Capacity Act resources are a practical companion. Quotations here are from those sources as published on 25 September 2026. A revised Code of Practice has been consulted on but not yet laid before Parliament, so the 2007 Code remains the one to follow.

This guide is a practical starting point for health and social care staff in England and Wales, not legal advice about an individual person. Where a decision is serious or disputed, involve the professionals around the person, and the Court of Protection is the place of last resort.

Then do one thing: take the three most recent capacity assessments in your service and check each against the list in section 04. Any that do not name the specific decision, the support given and the causal link need rewriting before they are relied on.