Fluctuating Capacity and Risk: Managing Uncertainty Lawfully in Adult Social Care
Fluctuating capacity is one of the most challenging realities of adult social care practice. People may have capacity at certain times of day, for some decisions but not others, or with the right support. Managing this uncertainty requires confidence, flexibility and robust governance. Within mental capacity, consent and best interests decision-making, fluctuating capacity is where poor practice most often results in unnecessary restriction or unlawful decision-making. Effective responses must be grounded in core principles and values, particularly autonomy, proportionality and positive risk-taking.
This article focuses on how services can evidence lawful, balanced responses when capacity is not static.
Why Fluctuating Capacity Is Often Mishandled
Fluctuating capacity is frequently mishandled because services seek certainty where none exists. This can lead to overly restrictive decisions “just in case”, driven by fear of blame rather than legal reasoning.
Common errors include:
- Assuming incapacity based on diagnosis
- Failing to reassess capacity when circumstances change
- Using best interests decisions as default
- Recording risk without weighing benefits
Operational Example 1: Diagnosis Used as Proxy
Context: A person with early dementia is assumed to lack capacity for all financial decisions.
Support approach: No decision-specific assessment is undertaken.
Day-to-day delivery: Control is transferred entirely to others.
How effectiveness is evidenced: Following complaint, the provider must revise practice and retrain staff.
Assessing Capacity in the Moment
Good practice recognises that capacity may vary by time, environment and support. Assessments should reflect this, documenting why capacity is present or absent at that point and what support was offered.
Operational Example 2: Time-Specific Capacity
Context: A person regularly makes decisions independently in the morning but struggles later in the day.
Support approach: Key decisions are scheduled earlier.
Day-to-day delivery: Staff adapt routines rather than impose restrictions.
How effectiveness is evidenced: Increased autonomy with reduced conflict.
Commissioner Expectation
Commissioners expect services to demonstrate proportionate responses to risk, particularly where fluctuating capacity impacts placement stability, cost or safeguarding arrangements.
Regulator / Inspector Expectation (CQC)
CQC expects providers to avoid blanket restrictions and to evidence how capacity is reassessed. Inspectors often explore how staff balance autonomy and safety in real cases.
Operational Example 3: Positive Risk-Taking Governance
Context: A provider supports people with fluctuating capacity to access the community.
Support approach: Risk enablement plans are reviewed regularly.
Day-to-day delivery: Staff record learning from incidents, not just outcomes.
How effectiveness is evidenced: Reduced restrictive practices and strong inspection feedback.
Managing Uncertainty Well
Fluctuating capacity cannot be eliminated, but it can be managed lawfully. Services that embed reassessment, reflection and proportionate risk-taking demonstrate mature MCA practice and protect both people and organisations.