Fluctuating capacity and the law: A quick guide

Fluctuating capacity has been a recurring issue in court cases in recent years. This situation arises when an adult, who typically has the capacity to make decisions independently, temporarily loses (or is at risk of losing) the ability to make or communicate those decisions. It can therefore be a difficult concept to apply.

It needs to be carefully considered based on the facts. The specific issues of the individual’s presentation, the nature of the decision to be made, and the practicalities of identifying a person’s ability to make a capacitous decision at any given time will all contribute to determining which strategy the court may use to manage the issue of capacity, as recent court decisions demonstrate. 

We recently reviewed two fluctuating capacity cases and the difficulties associated with managing each case. The case of EM highlighted the importance of incorporating flexibility in care plans when an individual’s capacity fluctuates, and in the case of KZ, it was important to have assessors who are not only proficient in British Sign Language but understood the nuances of fluctuating capacity.

We provide guidance about this in our briefing note on fluctuating capacity, available on our Health and Care Hub – if you are not signed up to our hub, you can register here or you can contact Neil Ward.

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