Fluctuating capacity is when a person’s ability to make a specific decision varies over time. This is usually due to a health condition that disturbs their cognitive function. For example, conditions might include bipolar or a person with dementia who experiences ‘sun downing’.
The Mental Capacity Act
In any matter relating to mental capacity, we must always start by referring to the key principles of the Mental Capacity Act (2005), including that of presuming capacity, supporting capacity, and respecting a person’s right to make unwise decisions.
If there is a reasonable belief that a person may not have capacity to make a specific decision – or if their decision may be contested at some point in the future – a full mental capacity assessment should be carried out. In complex or difficult cases, we recommend you work with a professional assessor. This will help to ensure the individual’s rights are protected, with appropriate Best Interest decisions in cases where the individual is found to lack capacity.
What to do in cases of fluctuating capacity
If a person’s capacity is known (and evidenced) to fluctuate, then the first thing is to identify any patterns in the fluctuations, in order that the decision may be made at a point where the individual is at their most able. If the decision to be addressed can be deferred until they regain capacity for the specific decision being addressed, then deferral is often the best option.
Approach to how to manage fluctuating capacity, optimising rights and safeguards can vary depending upon the type of decision, frequency of fluctuations and proportion of time with/without capacity. For example, in terms of Litigation capacity, the Court of Protection has ruled that a longitudinal approach should be taken. Therefore due care and consideration should be taken, involving health professionals and legal as appropriate.
In terms of care planning, one form of approach that could be considered is that if it is known that the individual’s capacity fluctuates frequently then their wishes, views and values should be established while they have capacity, being sure to include them within any decision-making process when their capacity fluctuates. In doing so, associated Best Interest decisions should be made with the person for those times where they will lack capacity for said decision, gaining a type of advanced decision from the individual. This process should include due consultation with all relevant parties, including any professionals involved in their care.
Depending on the nature on the decision(s) to be made, it may be appropriate to bring the decision(s) to the Court of Protection for judicial direction and oversight.
Relevant case law
A growing range of cases are being brought before the Court of Protection, providing context-specific direction:
- Cheshire West and Chester Council vs PWK (2019) EWCOP 57
- Local authority vs Litigation friend vs NHS Integrated Care Board (2023) EWCOP9
- North Bristol NHS Trust v R (2023) EWCOP 5
- Local Authority v H (2023) EWCOP 4
Although now slightly dated, Thurrock Council (2019), provide a useful resource titled ‘How to work with people with fluctuating capacity’ which we would recommend as a useful reference tool. Other resources include:
- Local government lawyer (2019) ‘fluctuating capacity – micro vs macro decisions’
- Martin Curtice (2020) blog ‘fluctuating capacity and the Mental Capacity Act’
- Imran Waheed (2021) blog ‘fluctuating capacity’ in terms of litigation
- Fluctuating capacity and the law: quick guide – Adults (ccinform.co.uk)
- Open Court of Justice blog on Mental Capacity Assessment and Fluctuating Capacity
- Alex R Keen (2023) blog ‘fluctuating capacity – making rights real and practical, not theoretical and illusory’ and others, such as ‘fluctuating capacity – another judicial take’ (2020)
- Capacity Guide
For more information and support with Mental Capacity assessments and training, please do get in touch.