Does Lack of Engagement = a Lack of Capacity?

In the context of mental capacity, ‘engagement’ refers to a person’s active

participation and cooperation in the assessment or decision-making process.

This might include answering questions, attending meetings, or otherwise

communicating with professionals.

A lack of engagement, therefore, is when a person is unwilling to take part in

the assessment.

Crucially, we must distinguish between someone choosing not to engage versus

someone who is unable to engage due to an impairment. In other words, is the

person’s silence or refusal a capacitous choice, or is it stemming from a lack of

capacity?

The MCA’s First Principle: Presumption of Capacity

Under the Mental Capacity Act 2005 (MCA), every adult is presumed to have

capacity unless proven otherwise.

The onus is on the assessor to establish lack of capacity – not on the individual to prove they have capacity. In practice, this means the person being assessed “has to ‘prove’ nothing”. Simply being uncooperative or refusing help does not, by itself, equal incapacity.

The Act’s first principle empowers individuals to say no – everyone has the

right to refuse an assessment and ultimately, cannot be forced to undergo one.

Capacitous Refusal vs. Inability to Engage

A key challenge for professionals is determining whether non-engagement is a

capacitous refusal or evidence of an incapacity-related inability.

The courts have provided guidance on this distinction. For example, in Re QJ (2020), the individual was reluctant to answer certain questions during a capacity

evaluation. The judge cautioned that such reluctance should not automatically

be taken as an inability to participate; in fact, evidence suggested it was a

conscious choice on QJ’s part. In other words, QJ was presumed to have

capacity and was exercising it by selectively disengaging.

We can contrast this with cases where non-engagement truly stems from

incapacity. In Nottingham NHS Trust v RL (2023), a man in his 30s with

impaired mental health who was selectively mute, hiding under bedcovers,

and not acknowledging anyone.

Doctors observed that he gave no indication of understanding his dire health situation; for instance, he would not respond or show awareness that accepting treatment (food/medication) was linked to staying alive. In this case, the lack of engagement was deemed not be a wilful choice but rather arising from his poor mental health.

The Court of Protection concluded RL could not weigh information or communicate decisions, and therefore lacked capacity for treatment.

Supporting Engagement: The Assessor’s Duty

The MCA’s second principle requires that all practicable steps are taken to help

the person make the decision (and thus demonstrate capacity) before

concluding they cannot.

In other words, assessors must try to facilitate engagement.

Justice Poole underscored this in AMDC v AG (2020): if an individual isn’t engaging, an expert need not “mechanically…ask about each and every piece of relevant information” if doing so is clearly futile or distressing. However, the assessor must record what was tried and consider alternative strategies to encourage participation.

This might include:

• Adjusting the approach: Is the setting, timing, or format of the

assessment comfortable for the person? Sometimes changing the

location or scheduling at a different time of day can help the person feel

more at ease. If certain topics embarrass them, find a way to discuss

capacity without directly confronting those issues.

• Changing the “who”: The person might respond better to a different

professional. In one case, giving the person a choice of who assesses

them improved cooperation (Wandsworth CCG v IA (2014)). The

assessor’s gender, cultural background or style could inadvertently be a

barrier, so consider involving someone the person trusts or feels

comfortable with.

• Explaining the purpose: Often people refuse because they fear the

outcome – for instance, losing autonomy if found incapable. Clear

reassurance that the assessment’s goal is to help them (by ensuring any

support or decisions truly match their needs) can sometimes reduce

resistance. Emphasise that engaging might actually prove their capacity.

• Addressing external pressures: If a third party (e.g. an overbearing

relative) is discouraging the person from engaging, legal steps might be

needed. Courts can invoke inherent jurisdiction or make orders to

ensure the person can be seen privately, as in Re SA (2011) where an

order was made to allow access to an individual thought to be under

undue influence.

What if the Person Still Refuses to Engage?

Despite best efforts, some individuals may persistently decline to participate.

Importantly, you cannot force someone to undergo a capacity assessment. If a

person refuses, practitioners should not simply give up or assume the worst.

Instead, the MCA allows you to reach a decision based on collateral

information when necessary. Courts and assessors can review third-party

evidence, such as input from family or carers, the person’s history, and

medical records, to judge capacity in the specific area of concern.

For example, if evaluating capacity to manage finances, one might examine how the person has been handling their money recently or ask a relative about the person’s routine and understanding of bills.

The question ultimately remains: on the balance of probabilities, does the

person lack capacity for the specific decision at hand? If enough credible

evidence (even without the person’s direct input) points to incapacity,

professionals may conclude as such provided they have taken all steps to

support engagement.

We should be prepared to justify that conclusion by referencing the evidence

and the attempts made to help the person engage.

Remember that a “reasonable belief” in the person’s incapacity is required if you are going to act in their best interests under the protection of the MCA (Section 5). This might include delivering necessary care or making a decision on the person’s behalf.

If doubt remains or the stakes are particularly high (e.g. serious medical

treatment or a major life change is involved), it may be prudent to seek the

Court of Protection’s determination. The court can formally decide whether

the person lacks capacity and authorise any actions in their best interests. This

was seen in the RL case above, where the court’s involvement was crucial due

to life-and-death implications.

Lack of engagement does not equal lack of capacity – it could very well be a

capacitous refusal, and the law guards against making snap judgments based

on non-cooperation.

The MCA’s first principle ensures we start by presuming capacity and require

proof to the contrary. As professionals we must tread carefully, using creativity

and patience to encourage engagement and uphold the person’s rights.

If a person chooses not to engage, that choice should be respected as long as

it’s a capacitous one. Conversely, if a person’s inability to engage truly stems

from an impaired mind or brain, we have a duty to recognise that.

In practice, asking “why won’t they engage?” is the critical first step.

By exploring the reasons and adapting our approach, we can often find a way

forward that either enables the person to participate or, at the very least,

allows us to gather enough insight through other means.

Ultimately, whether no engagement is a choice or a consequence of incapacity, the response should be rooted in empathy, diligence and the empowerment that the MCA framework provides to individuals and practitioners alike.