Why Fluctuating and Borderline Capacity shouldn’t exist

Since I posted a few weeks ago about my training session with @Enable Law where I said that I don’t believe Fluctuating and Borderline Capacity should exist as outcomes, I have a number of people get in touch to know why I think this. So, here’s why I think it shouldn’t…

Let’s start with a couple of definitions.

Mental Capacity: Now, there are a number of definitions floating around but they all seem to revolve around one general theme, that of ‘the ability to make a decision’. Personally, I really like the definition as proposed by Mencap, which is “Mental capacity is the ability to make an informed decision based on understanding a situation, the options available, and the consequences of the decision”. Furthermore, according to Mental Capacity Act (2005) a person needs to be able to understand, retain, weigh up and use and communicate relevant information in order to have capacity (MCA s.3 (1))

Fluctuating Capacity: Whilst there is no formal definition of fluctuating capacity, it is generally used to describe a situation whereby, the outcome of a decision made by a person will alter over a relatively short period of time, due to changes in their cognitive state/abilities.

Borderline Capacity: This is another term whereby a formal definition appears hard to come by. However, it is generally used to describe a situation whereby a person’s ability to meet the criteria for capacity is deemed to be unclear or hard to determine.

At first glance all 3 of those definitions would appear to reflect real-world situations but let’s look a little deeper.

I think we would all agree that mental capacity for a specific decision is binary – either you meet the criteria for mental capacity to make that decision as outlined in the Mental Capacity Act, or you don’t.

If that is the case, then neither fluctuating capacity or borderline capacity as defined above, can be used as a ‘final outcome’ description of a person’s mental capacity. At best they are interim terms that we use whilst trying to determine whether a person has the capacity to make the decision.

In effect, what we are really saying with both fluctuating capacity and borderline capacity is “I haven’t worked out whether the person meets the criteria for mental capacity yet” – so why don’t we just say that?

If we really do need terms to describe these interim states then surely something more akin to ‘Inconsistent decision outcomes’ or simply ‘Unclear whether they meet the criteria for capacity’ would be so much more helpful.

At the risk of alienating some people, I truly believe that using the terms ‘Fluctuating Capacity’ or ‘Borderline Capacity’ as a final outcome regarding a person’s capacity just shows that the assessor in question has not finished their job. If they are unsure if the person meets the criteria for capacity, they need to identify why and keep exploring until they reach a decision based on the balance of probabilities.

So, there you have it. That is why I do not believe the terms Fluctuating Capacity and Borderline Capacity should exist.

If you would like to learn more about how to assess mental capacity then please do hop over to my YouTube Channel: Tim Farmer – Assessor’s Notebook to find out more.

If you are in need of a capacity assessment (that won’t end in the conclusion of Borderline or Fluctuating Capacity) then please do get in touch via tim@timfarmer.co.uk