In any interview, gaining the consent of the adult to be interviewed should be the norm. The council officer should also consider the adult’s capacity and promote the adult’s participation in the interview.

A person’s capacity can vary over time and in respect of different types of decision making.

While capacity or lack of capacity does not determine an assessment of the three-point criteria, capacity is relevant in relation to the ability to consent to, for example, a medical examination or to take decisions relating to care arrangements or financial dealings.

Capacity applies to both decision making and the implementation of decisions. A person can have the capacity to make a particular decision but through illness, traumatic event, or infirmity may not have the physical or emotional capacity to retain a memory of a decision and/or to implement that decision.

A person’s capacity can be transient, vary over time and vary in respect of different types of decision making. As capacity can change over time, it should be assessed at the time that consent is required.

When considering capacity, practitioners must also consider factors such as the adult’s mood or state of mind, lack of confidence - or lack of experience - in making decisions or carrying out decisions, and the individual’s ability to retain the memory of the decision.