When should a capacity assessment be undertaken?

In this case an application was made by the Official Solicitor to discharge a previous order for the instruction of an independent expert psychiatrist to assess SB’s capacity to make decisions in relation to contact with others. In reaching its decision to make the order sought, the Court took into account that no party wished the Court to make any decisions about best interests in relation to contact with others and as such, there was no need for an assessment of her capacity in this regard.

Practical Impact

Health and social care practitioners should be mindful of the following when considering whether to undertake a capacity assessment for a decision:

  • What is the purpose or the need for carrying out an assessment of capacity?
  • Is anyone seeking or purporting to make a decision on the relevant issue in the person’s best interests? If not, why is the capacity assessment necessary?
  • The very act of carrying out a capacity assessment can be intrusive and distressing, and as such, there must always be legitimate grounds to consider that one is necessary.
  • Capacity is time specific in nature and therefore it is appropriate for a capacity assessment to be undertaken if and when a specific concern about making a decision arises.

For further information about this case, please contact Ellen Lloyd, Solicitor.

You can read the full case summary below.


SB (capacity assessment) [2020] EWCOP 43

Relevant Topics

  • Capacity assessments
  • Mental Capacity Act 2005 (the “MCA”)
  • Independent experts


Her Honour Judge Anderson

SB was a 30 year old woman with a diagnosis of a mild to moderate learning disability. An application was brought by the Official Solicitor to discharge a previous direction made in May 2020 to instruct an independent expert psychiatrist to assess SB’s capacity to make decisions in relation to contact with others.

Previously, SB had been deemed to lack capacity in relation to a number of domains including contact. Subsequently, it was deemed that she had capacity to make decisions about residence, use of the internet and social media, contraception and her care needs. SB continued to lack capacity regarding the litigation. When it became clear that SB had capacity in the other domains, the Official Solicitor had sought (and the parties and the Court agreed) a further assessment of her capacity in relation to contact.

The Official Solicitor subsequently submitted that SB did not wish to take part in a further assessment and would find it distressing and intrusive. The Local Authority supported this view and submitted that there was no need for an assessment and it would in fact be detrimental to SB to require her to engage in the process. SB’s mother, AB, submitted that the proceedings should continue and that such an assessment might result in there being different support for SB.

In considering SB’s wishes and feelings HHJ Anderson had the benefit of meeting SB before the hearing. SB reported that she wanted the proceedings to continue, there was a need for assessment but she was not prepared to be assessed by the expert who had reported previously, but would be prepared to be assessed by a different doctor.

HHJ Anderson determined that the direction for the assessment of SB in relation to her capacity to make decisions for contact was discharged. The Court did so on the basis that:

  • No party was wishing the Court to make any decisions about best interests in relation to SB’s contact with others;
  • There was no evidence before the Court that SB was at risk from third parties or engaged in activity which would draw them to her at the time of the hearing;
  • There was a real risk to SB’s emotional well-being by allowing such an assessment to proceed - the court noted evidence from both the Social Worker and SB’s solicitor that SB had engaged less with them since the further work was ordered. SB told her solicitor that she found questions from professionals distressing. The Social Worker submitted that the involvement of a new professional was likely to cause SB distress. In considering this evidence, HHJ Anderson stated that “the introduction of a new professional and therefore going over very difficult matters in SB’s past …will be likely to cause SB anxiety and distress and increase the risk of emotional harm to SB”.

HHJ Anderson went on to say that the process would not have a therapeutic element and it would simply be a discussion for assessment purposes and would not necessarily have any intrinsic benefit to SB. The Court took into account SB’s willingness to take part in a further assessment however it had concerns that she was confusing the proposed assessment with an assessment relating to contact with her child.

The Court was not persuaded by AB’s view that further assessment would result in different support for SB or bring about any changes in safety planning. SB’s support had been in place for some time and appeared to be working well.

Other Key Findings

  • As the Court was not being asked to make any decisions about SB’s contact with others, it would not be in SB’s best interests for the Court to direct that there be such an assessment.
  • The level of anxiety and distress which would be caused by repeated conversations and very difficult matters was likely to outweigh any perceived benefits.
  • No party was asking for a best interests decision in relation to contact with others and given the time specific nature of capacity, it would be appropriate for any capacity assessment to be undertaken if and when a specific concern about SB’s contact with others arise.

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