How to assess the specific decision

Begin by stating the decision in practical terms: for example, whether to accept a proposed operation, whether to remain in hospital for treatment, or whether to move to a particular care setting. Then identify the information a reasonable person would need for that decision: the nature and purpose of the option, material benefits and risks, reasonable alternatives and the likely consequences of accepting or declining.

The information should be tailored to the actual choice. Testing knowledge that is irrelevant to the decision can make an assessment unfairly difficult.

In England and Wales the familiar functional elements are understanding, retaining, using or weighing relevant information, and communicating the decision. Other UK frameworks use their own statutory wording, so the module should not assume identical legal language.

The practical purpose is to observe how the person engages with the relevant information. Asking them to explain in their own words is usually more informative than asking “Do you understand?”

A conclusion of incapacity is not simply a count of failed questions. The applicable law may require a causal link between an impairment or disturbance and the inability to make the decision. The assessor should be able to explain why the difficulty is attributable to the relevant impairment rather than to poor communication, lack of information, coercion or disagreement.

The person does not need medical expertise or perfect recall. They need enough grasp of the salient information to make the decision. Retention only needs to be long enough to use the information in the decision-making process; memory impairment does not automatically defeat capacity.

Information should be revisited, clarified and supported when possible. The assessment should not become an examination designed to make the person fail.

Leading questions can produce superficial agreement without demonstrating understanding. Conversely, demanding a sophisticated explanation may set an unfairly high threshold. Use open questions, ask the person to compare options and explore what matters to them.

Do not infer incapacity because the person gives different weight to risks and benefits than the clinician. The key is whether they can engage with the consequences in a way that reflects their own values and reasoning.

A strong note records the decision, relevant information, support provided, the person’s own responses, evidence for each relevant ability, any causal basis required by law, the conclusion and the review plan. Quoting a short phrase from the person can sometimes make the reasoning clearer.

Avoid copying a generic template without narrative evidence. The record should show how the conclusion was reached, not merely that boxes were ticked.

Use the search box in this module to jump to these terms and related concepts.

• understand
• retain
• use and weigh
• communicate
• salient information
• causal connection
• capacity assessment
• decision-specific

Complete a model assessment note: decision, information discussed, support used, evidence for each relevant ability, causal basis, conclusion and review plan.

Use current official sources for further reading. Links open the issuing organisation.

• MC-EW-01 — Mental Capacity Act 2005
• MC-EW-02 — Mental Capacity Act Code of Practice
• MC-S-01 — Adults with Incapacity (Scotland) Act 2000
• MC-S-03 — Adults with incapacity: code of practice for medical practitioners
• MC-NI-01 — Mental Capacity Act (Northern Ireland) 2016
• MC-NI-03 — Mental Capacity Act legislation - Department of Health NI
• CON-UK-01 — GMC - Decision making and consent

Sources checked through 17 September 2026. High-volatility legal topics must be rechecked before patient-specific decisions.