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Mental Capacity Assessment

Contact meeting between relevant person and their representative

How many stages are there in a Mental Capacity Assessment?

According to the Mental Capacity Act (2005), a Mental Capacity Assessment is made up of two stages, functional and diagnostic. It has therefore been referred to as the ‘two-stage’ test. However, a quick browse online, alongside discussion with different professionals, reveals quite a bit of misunderstanding around how many stages there are and when these stages apply. This is perhaps due to the inconsistent way that assessments are referred to by certain institutions and professional bodies. There also seems to be some confusion between the four steps of the functional stage of an assessment, and the two stages of the overall assessment.

Clearly, terminology is important, and we should make efforts to ensure we are always using the correct terms.

Mental Capacity Ltd - Mental Capacity Assessment

Retrospective Mental Capacity Assessments

A standard mental capacity assessment (also known as the two-stage test) is usually carried out for a specific decision at a specific time. It is completed prior to the decision being made if there is either a ‘reasonable belief’ that an individual may lack capacity, or to reduce the risk of someone challenging the person’s capacity to make the decision at some point in the future.

Meanwhile, a retrospective mental capacity assessment refers to a traditional assessment of capacity for a specific decision, but for a decision made historically. Examples might include a Lasting Power of Attorney submission signed and submitted the previous month, or a financial gift made to a family member or friend several years in the past.

Two women interviewing / assessing a person wearing a checked yellow shirt.

The six key assessments for DoLS

The Code of Practice for DoLS (2008) directs that wherever possible, DoLS authorisations should be applied for in advance of a hospital or care home admission, in order to ensure that appropriate safeguards are in place from day one. As such, a DoLS application should really be made at the point where the individual is assessed prior to admittance, in order that the application be processed in time.

Close up of an elderly woman sat in a cafe

Mental capacity two stage test: Is a formal diagnosis required?

In previous blogs, we have explored some of the many different elements required to assess mental capacity for a specific decision. This brings us then to the two stage test, which is composed of the functional and diagnostic steps that are then bound together as part of the causative nexus (the justifiable link).

Mental capacity assessment: female professional assessing elderly gentleman

Important updates to Form COP3 ‘assessment of capacity’

As of July 2023 there is now a new updated COP3 form (‘assessment of capacity’ for Court of Protection Submissions) available on the UK Government website. We have a growing range of blogs around this topic and area able to provide completition of Part B on referral. For a walkthrough guide of the updated document, please visit.

Woman in wheelchair signing consent form

Mental Capacity and informed consent

Consent refers to a person’s voluntary assent to a particular action, decision or interaction. There are many different types of consent. These include:

  • Implied consent – where no verbal or written consent has been given, but an action by the individual in question suggests their agreement. For example, if a patient offers their arm to have their blood pressure taken.  
  • Informed consent – requires an explicit understanding of all the relevant facts, including risks and available alternatives. Usually, information is provided in order to help the person to understand what is proposed and why. This type of consent is often associated with medical procedures in healthcare settings; it is also often formalised with a physical signature on a consent form.
Manor house on a misty day

Case study: The diagnostic step and the causative nexus

The diagnostic step is a simple but often misunderstood part of the Mental Capacity Assessment. One of the most common errors is to simply list a medical diagnosis without any explanation of how the diagnosis impacts upon decision-making. However, this link – also known as the causative nexus – is the vital point on which the rest of the assessment is based. It is therefore important to understand exactly why the diagnostic step is important and how to document it properly.

Man with learning disability getting married

Assessing capacity around unfamiliar topics

There are many elements of daily life that we don’t learn about until we reach certain stages of our lives or have greater levels of independence in our everyday lives. For example, on first moving away from a parents or caregivers home, a whole new world of experiences and responsibilities will suddenly occur. This can be anything from how to change a lightbulb or put up a shelf, to how to organise a loan or buy a car.