Capacity Assessments: Why Resistance Happens — and Why They Matter
During our recent Case Manager Confidential, one theme that resonated strongly was the reluctance of some solicitors to commission capacity assessments. It’s an issue that sits at the crossroads of law and clinical responsibility — and can leave Case Managers navigating delicate professional territory.
A theme that resonates strongly in our Case Manager Community is the reluctance of some solicitors to commission capacity assessments. It’s an issue that sits at the crossroads of law and clinical responsibility — and can leave Case Managers navigating delicate professional territory.
When Solicitors Resist Capacity Assessments
Many Case Managers shared that solicitors sometimes discourage formal capacity assessments, particularly early in a case. The reasons often include:
Cost: Formal assessments add time and expense to a case.
Complexity: A finding that a client lacks capacity can trigger further legal processes, such as the appointment of a deputy.
Perceived risk: Some legal teams fear it could complicate or delay settlement.
From the solicitor’s perspective, those concerns can seem pragmatic. But for clinicians, they raise ethical and professional challenges — especially when there are doubts about whether a client can understand and weigh up key decisions.
The Case Manager’s Duty
Case Managers have a continuous duty to consider capacity. It isn’t a one-off decision — it’s an ongoing process that should be revisited as a client’s condition, cognition, or circumstances change.
If there’s uncertainty about whether a client can understand, retain, and use information relevant to their decisions, a formal assessment may be necessary. This isn’t about creating barriers — it’s about ensuring informed, lawful consent and protecting everyone involved.
And importantly, if capacity hasn’t been properly assessed when it should have been, that decision can later be challenged, potentially undermining instructions, settlements, or treatment decisions.
Why Capacity Assessments Protect Everyone
A formal capacity assessment is not simply a legal formality — it’s a protection mechanism for all parties.
For the client, it safeguards autonomy and ensures decisions are made in their best interests.
For the solicitor, it provides assurance that instructions are valid and defensible.
For the case manager, it clarifies boundaries and supports clinical integrity.
As one participant noted, “It’s there as assurance to the litigation settlement — even though it costs more, it’s embedded in the Code of Conduct.”
Ultimately, it provides confidence that the process stands up to scrutiny.
Understanding Capacity in Context
Capacity is both decision-specific and time-specific.
Someone may have capacity to make certain everyday decisions, but not necessarily those involving complex legal or financial judgments.
Confusion often arises when a person demonstrates capacity in one area — for example, managing daily activities — and professionals assume this extends to all other areas. This assumption can complicate matters, especially when the demands of the litigation process differ significantly from day-to-day choices.
How to Handle Capacity Confusion: Practical Tips
Clarify the Decision in Question
Always define what decision is being assessed — e.g., managing finances, instructing a solicitor, agreeing to therapy. Each requires different levels of understanding.Document Your Rationale
When you believe capacity may differ across domains, explain clearly in your notes why. This supports transparency and protects your clinical reasoning.Communicate with the Legal Team
Frame your discussion around safeguarding both the client and the case. Emphasise that assessing capacity is about protecting validity, not obstructing progress.Encourage Early Collaboration
Engage deputies, psychologists, or senior MDT members early if capacity concerns arise. A united approach helps manage resistance and keeps the focus on the client’s best interests.Seek Peer or Supervisory Support
When the situation feels unclear, use supervision or professional forums to test your reasoning. Many case managers in our session highlighted the value of peer input when navigating these challenges.
Bridging the Divide
When faced with solicitor resistance, approach conversations with empathy and clarity.
Emphasise shared responsibility — both legal and clinical professionals have duties around capacity.
Focus on reassurance, not confrontation.
Explain that confirming capacity strengthens the integrity of the case rather than jeopardising it.
Final Thought
Capacity assessments can feel uncomfortable, but they exist to protect everyone involved — most importantly, the client.
For Case Managers, the key lies in holding firm to clinical duty, maintaining open communication, and clarifying boundaries around decision-making.
Assessing capacity isn’t an obstacle to progress — it’s a cornerstone of ethical, safe, and accountable practice.
At Healthy You, our focus is on helping case managers thrive in demanding roles. Through training, supervision, and peer forums, we create spaces where you can build resilience, share experiences, and strengthen practice. If you’d like to explore these themes further, or simply hear how other case managers are approaching their work, join one of our free Case Manager Confidential sessions — a confidential forum designed to offer both support and practical insight.
For details, contact sarahsawyer@healthyyoultd.co.uk