Apathy or lack of cooperation to undergo a capacity assessment should not lead to the conclusion that a person lacks capacity.  In circumstances where a person refuses to undergo a capacity assessment, it may be possible to persuade them to agree to an assessment if the consequences of refusal are carefully explained for example, the implications of a medical procedure.  However, in the face of an outright refusal, (and in the absence of a Court order), no one can be forced to undergo a capacity assessment. Refusal to cooperate with an assessment together with other available information may be relevant in a legal decision about the person’s capacity.

Where there are serious concerns about the person’s mental health, the Mental Health (Compulsory Assessment and Treatment) Act 1992 may be used but only for the purpose of assessment or treatment of the mental disorder itself.


  © 2020 Alison Douglass