Avoid Getting Stuck | Capacity Assessment Example Questions

by socialworkhaven

Making decisions may sometimes come as a challenge to some people. This may be due to an illness or tiredness, and the Mental Capacity Act (MCA) (2005) may be used as a decision support tool. Possible signs of limitation in mental capacity may include a brain injury, substance/alcohol misuse or a mental health problem.

So what is a mental capacity assessment?

What is the Mental Capacity Act 2005 about?

A mental capacity assessment is not about a cognitive or memory test. Instead, it looks at whether a person can make a specific decision at a specific time. Capacity assessments fall within the Mental Capacity Act (2005) which is a decision support tool used to empower, and protect people who are unable to make a decision due to an impairment of the mind or brain. The MCA can also be used to support people who have capacity to make plans now for a time in the future when perhaps they are unable to make specific decisions. 

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Who can assess capacity?

Anyone supporting or caring for a person who may lack capacity to make a specific decision can complete a capacity assessment. 

I will be the first to admit that completing mental capacity assessments during the early stages of my career was overwhelming. Although I had an understanding of how to apply the Mental Capacity Act 2005, in practice, I struggled with the layout of my report and what questions to ask. As a result, I have detailed some questions you can consider in your capacity assessments.

Please note that these questions are not prescriptive and you are likely to ask less or more questions based on the individual.

In addition, you are likely to need to do more research on tools or questions you may want to ask when carrying out a mental capacity assessment, depending on the specific decision. Nonetheless, this post will hopefully help you avoid getting stuck. 

I have also listed some useful resources at the end of this post. 

Mental Capacity Assessment Report Template

Background information of individual
 What triggered this assessment?
What is the specific decision?
What practicable steps have been taken to enable and support the person to participate in the decision-making process?

Functional Test

Is the individual able to understand the relevant information?
Analysis:
Is the individual able to retain the information long enough to make the decision?
Analysis:
Is the individual able to weigh up the information to make the appropriate decision?
Analysis:
Is the individual able to communicate the decision by appropriate means?
Analysis:

Diagnostic test

Is there an impairment of, or a disturbance in the functioning of the mind or brain?
Explain how the impairment of, or disturbance in the functioning of the mind or the brain causes the person to be unable to make the decision.
Conclusion

Questions to ask when carrying out mental capacity assessments

Assessment of capacity to understand and sign a tenancy agreement example questions

These questions will be useful when needing to assess whether a person has the mental capacity to sign a tenancy agreement. They will need to have a general understanding around tenancy obligation and tenancy rights.  Reference must be made to the Mental Capacity Act 2005, Sections 1–4
1Can you tell me where you live? 
2Can you explain what a Tenancy Agreement is? 
3Have you seen a Tenancy Agreement before? 
4Can you tell me who the tenancy agreement is between? 
5Who will be the tenant? 
6When will the tenancy start? 
7How much rent will you pay? 
8Who will pay this rent? 
9Who will you pay the rent to? 
10How will you make payment? 
11What services would you be provided with? 
12What other services do you have to pay for? 
13How will you pay your council tax? 
14How will you apply for your housing benefits? 
15Housings obligations 
16The right to end tenancy if conditions are breached. 
17Who is responsible for repairs and maintenance? 
18Do you understand your tenancy obligations? 

19

What are your tenancy rights?

 

Assessment of capacity to make decisions around finances example questions 

These questions will be useful when needing to assess whether a person has the mental capacity to make decisions around their own finances. This can be made more specific under bills, day to day expenses, investment, and benefits. Reference must be made to the Mental Capacity Act 2005, Sections 1–4
1Who manages the money in your household? 
2What do you need to pay for/what are your outgoings? 
3Do you have any difficulties in taking your money out of the bank? 
4Do you have any savings? 
5Do you need any help with your money? 
6Does anyone help you with your money? 
7How do your bills get paid? 
8Can you tell me where you keep copies of bills/statements? 
9Are you in full receipt of your benefits? 
10Do you know what you are entitled to? 
11Roughly how much do you receive? 
12How is your care funded? 
13Do you need any help to get the benefits you are entitled to? 
14Does anyone owe you money? 
15Can you always pay for essential items? 
16Do you sometimes run out of money? What happens? 
17Where do you keep your money? 
18How much money do you have in your purse/pocket? 
19What are you planning on spending it on? 
20What are these coins/notes? 
21Can you give me 35p from the coins? 
22Can you give me a £10 note? 
23How do go about getting things from the shops? 
24If you had a £14.50 bill to pay but you wanted to go out with your friends, what would you do? 
25What is more expensive – a pint of milk or a packet of cigarettes? 
26Do you have any savings? 
27Where are your savings held? 
28Can you remember your PIN for your debit/credit cards? 
29What do you do to help you remember your pin? 
30Do you do online banking? 
31Have you given your PIN or passwords to anyone? 
32Do you receive any help with your money? 
33Are you happy with the help you get with this? 
34Is there anyone you would like to help you with your money? 
35Is there anything else you would need help with around your finances? 

Assessment of capacity to make decisions around care and support needs example questions

Useful reference, case law: LBX v K, L and M [2013] EWHC 3230 (Fam), [2013] MHLO 148. These questions will be useful when needing to assess whether a person has the mental capacity to make decisions around their own care and support needs. Reference must be made to the Mental Capacity Act 2005, Sections 1–4

Suggested questions can be grouped under:

  • Things I manage well
  • Not sure about
  • Things I find difficult
1Do you have good or bad days? 
2Tell me about a good day? 
3Tell me about a bad day? 
4Are you able to cook your own meals? 
5How do you do this? 
6Could you scald or burn yourself when preparing your own meals? 
7Do you access anything in the community? 
8Do you use any walking aids? 
9Have you experienced any falls in the past? How recent? 
10Can you safely use your home? 
11How do you access the community? 
12Do you go to the shops? 
13Is the post office far? 
14Do you like to go on walks? 
15Do you like to swim? 
16Does anyone support you with food shopping? 
17Are you on any medication? 
18Are you able to self-medicate? 
19What times do you take your medication? 
20Do you need someone to remind you to take your medication? 
21When did you last have your medication reviewed? 
22How is this paid? 
23Do you rent this property? 
24What benefits are you on? 
25Do you manage your own money? 
26How do you pay your bills? 
27How do you budget your money? 
28Do you ever run out money? If so, what happens then? 
29Can you use the toilet independently? 
30Do you have a shower or bath at night, do you prefer it in the morning? 
31Do you have anyone to support you if you could not get into the shower yourself? 
32Would you ask for help? 
33How do you change your bedding? 
34How are you with putting clothes on? 
35Do you see your friends and family? 
36How do you make contact with them? 
37When was the last time you saw them? 
38Are you seeing them this week? 
39Are there any children you care for? 
40Do you care for an adult? 
41Can you tell me in what way you provide support? 
42Do you feel that you need support to manage your day to day living? 
43What areas do you feel you need support with? 
44OR why do you feel that you do not need any support? 
45What sort of support do you need? 
46Who will be providing you with the support? 
47What would happen if you did not have any support or refuse it? 
48Carers might not always treat you properly and that you can complain if you are not happy about your care. Do you have details of who you can complain to? 

Assessment of capacity to make decisions around medication example questions

These questions will be useful when needing to assess whether a person has the mental capacity to make decisions around medication. However, most often this is carried out by Health Care professional. Reference must be made to the Mental Capacity Act 2005, Sections 1–4
1Do you take any medication? 
2What medication do you take? 
3Who prescribed it to you? 
4Why do you take these medications? 
5Are you able to read the medicine labels? 
6What support is needed to apply your creams or use an inhaler? 
7How do you store your medication? 
8Where is your GP practice? 
9How do you attend GP or hospital appointments? 
10How do you ensure that you do not miss your medication? 
11Do you have any nutritional needs that may affect when you take your medication? 
12Who do you contact if you have questions around your medication? 
13When did you last have your medication reviewed? 
14Do you need any support with your medication? 
15Do you take any medication? 
16What medication do you take? 
17Who prescribed it to you? 
18Why do you take these medications? 
19Are you able to read the medicine labels? 
20What support is needed to apply your creams or use an inhaler? 
21How do you store your medication? 
22Where is your GP practice? 
23How do you attend GP or hospital appointments? 
24How do you ensure that you do not miss your medication? 
25Do you have any nutritional needs that may affect when you take your medication? 
26Who do you contact if you have questions around your medication? 
27When did you last have your medication reviewed? 
28Do you need any support with your medication? 
29How do you store your medication? 
30Where is your GP practice? 

Assessment of capacity to revoke a LPA example questions

Case law: SAD & ACD v SED [2017] EWCOP 3)

To make this decision, they will need to have an understanding around the foreseeable consequences of revoking a LPA.

1Who are your attorneys? 
2How long have you had X as your attorney? 
3Why do you want to revoke the power of attorney? 
4How did the attorney manage your money? 
5What authority do they have? 
6Do you want to appoint someone else as a LPA? 
7Who are you appointing as a LPA? 
8Why have you chosen this person? 
9Why have you not chosen anyone else? 
10If an LPA is not put in place, and a person subsequently loses capacity, it might be necessary for a court application to be made for a Deputy to be appointed to deal with their affairs. Is this something that you are aware of? 
11What are your attorneys? 
12How long have you had X as your attorney? 
13Why do you want to revoke the power of attorney? 
14How did the attorney manage your money? 
15What authority do they have? 
16Do you want to appoint someone else as a LPA? 
17Who are you appointing as a LPA? 
18Why have you chosen this person? 
19Why have you not chosen anyone else? 
20If an LPA is not put in place, and a person subsequently loses capacity, it might be necessary for a court application to be made for a Deputy to be appointed to deal with their affairs. Is this something that you are aware of? 

Assessment of capacity to appoint a LPA for property and finances sample questions

To make this decision, the individual will need to understand that the LPA is a legal document that lets them appoint one or more persons to help them make decisions or make decisions on their behalf. The individual will need to understand the nature and extent of any property they may have, the value, and any liabilities. They will need to understand that appointing an attorney will give the person more control over what happens to their property or finances if they are unable to make decisions in future due to a lack of capacity. They will also need to have an understanding around foreseeable
consequences of making or not appointing the LPA.
1What is an LPA document? 
2What is an LPA? 
3Why do you want to appoint an LPA? 
4Who are you appointing as a LPA? 
5Why have you chosen this person? 
6Why have you not chosen anyone else? 
7What power are being given to the Attorney? 
8Why do you need someone to manage your finances? 
9Why do you need someone to manage your property? 
10Do you think there is the risk of potential financial abuse by the attorney? 
11Are you aware that the attorney can have full access to your money? 
12Are you aware that they may access money without your authorisation as they will be acting on your behalf? 
13If an LPA is not put in place, and a person subsequently loses capacity, it might be necessary for a court application to be made for a Deputy to be appointed to deal with their affairs. Is this something that you are aware of? 
14Are you aware that the attorney can collect your benefits or pension? 
15Are you aware that the attorney can pay your bills/rent/sell your home? 

Capacity to decide as to residence example questions

Case law: LBX v K, L and M [2013] EWHC 3230 (Fam), [2013] MHLO 148

The person will need to understand what the options are, including information about what they are, what sort of property they are and what sort of facilities they have; What sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist);

1What is the difference between living somewhere and visiting it? 
2What activities they would be able to do if he lived in each place? 
3Whether and how he/she would be able to see his/her family and friends if he/she lived in each place. 
4In relation to the proposed placement, that he/she would need to pay money to live there 
5That he/she would need to pay bills, and that there is an agreement that he has to comply with the relevant lists of “do’s and “don’ts, otherwise he will not be able to remain living at the placement; 
6Who he/she would be living with at each placement; 
7What sort of care he/she would receive in each placement in broad terms. 
8The difference between living somewhere and visiting it 
9What activities they would be able to do if he/she lived in each place 
10Whether and how he/she would be able to see his family and friends if he/she lived in each place. 
11In relation to the proposed placement, that he/she would need to pay money to live there 
12That he/she would need to pay bills, and that there is an agreement that he has to comply with the relevant lists of “do’s and “don’ts, otherwise he will not be able to remain living at the placement; 
13Who would he/she be living with at each placement; 

Capacity to decide as to contact with others example questions

Case law: LBX v K, L and M [2013] EWHC 3230 (Fam), [2013] MHLO 148

These questions will be useful when needing to assess capacity to decide as to residence. 

1Who are the people you have contact with? 
2What is the nature of your relationship with them? 
3What sort of contact could you have with each of them, including different locations, differing durations and differing arrangements regarding the presence of a support worker? 
4The positive and negative aspects of having contact with each person based on the individual’s own evaluations. The evaluations will only be irrelevant if they are based on demonstrably false beliefs. For example, if the person believes that someone, they are in contact them had assaulted him when they had not. 
5What are your past positive and negative experiences with the person you are in contact with? 
 Irrelevant: nature of friendship, importance of family ties, the long-term possible effects of contact decisions; risks which are not in issue, such as the risk of financial abuse.

Capacity to consent to sex 

A Local Authority v H [2012] EWHC 49

“Clearly a person must have a basic understanding of the mechanics of the physical act and clearly must have an understanding that vaginal intercourse may lead to pregnancy. Moreover, it seems to me that capacity requires some grasp of issues of sexual health. However, given that that is linked to the knowledge of developments in medicine, it seems to me that the knowledge required is fairly rudimentary. In my view it should suffice if a person understands that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom. I do not think more can be required”.

To summarise, a person needs to understand

1The mechanics of the act (to understand its sexual character) 
2That vaginal intercourse can lead to pregnancy 
3There are significant health risks caused by sex such as sexually transmitted diseases 
4That the health risks caused by sex can be reduced by taking precautions. 

 

Capacity to Litigate 

This is not covered by the Mental Capacity Act 2005, so we use case law and legal test Dunhill vs Burgin (2014).

In undertaking an assessment in this area, I am guided by the case of Masterman-Lister v Brutton & Co [2003] 1 WLR 1511, which established the need for a litigant to have:

‘The necessary capacity to conduct the proceedings or, to put it another way, to litigate”

This case also listed five elements, which must be considered when assessing mental capacity. These are:

1The party or intended party would need to understand how the proceedings were to be funded; 
2They would need to know about the chances of not succeeding and the risk of an adverse order as to costs; 
3They would need to have capacity to make the sort of decisions that arise in litigation; 
4Capacity to conduct the proceedings would include the capacity to give proper instructions for and to approve the particulars of claim, and to approve a compromise. 
5For a party or intended party to have capacity to approve a compromise, they would need insight into the compromise, an ability to instruct solicitors to advise them on it, and an understanding of their advice and an ability to weigh their advice. 

Capacity to make or alter a Will (Testamentary capacity) 

Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a valid will. The level of understanding required by the test varies according to the complexity of the will itself, the testator’s assets and the claims on the testator (Banks v Goodfellow (1870) LR 5 QB 549).

The test for capacity to execute a valid will is based in case law. A testator must:

1Understand the nature of making a Will and its effects. 
2Understand the extent of the property of which they are disposing. 
3Be able to comprehend and appreciate the claims to which they ought to give effect. 
4Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will. 
5Understand the nature of making a Will and its effects. 

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References

  • Grandpa on a Skateboard by Tim Farmer
  • Working with the Mental Capacity Act by Steven Richards and Aasya F. Mughal
  • Mental Capacity Act 2005 code of practice: [2007 final edition]: Code of Practice to the Mental Capacity Act 2005
  • A Practical Guide to the Mental Capacity Act 2005: Putting the Principles of the Act into Practice
  • Overcoming Challenges in the Mental Capacity Act 2005: Practical Guidance for Working with Complex Issues
  • The Pocketbook Guide to Mental Capacity Act Assessments

Online references

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2 comments

Sarah July 18, 2020 - 11:19 pm

I love this. Very useful – many thanks for this. x

Reply
socialworkhaven July 19, 2020 - 11:16 pm

You are most welcome 🙂

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