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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. 

Quick Navigation

• Who can assess capacity?
• Mental Capacity Assessment Report Template
• Questions to ask when carrying out mental capacity assessments
• Assessment of capacity to understand and sign a tenancy agreement example questions
• Assessment of capacity to make decisions around finances example questions
• Assessment of capacity to make decisions around care and support needs example questions
• Assessment of capacity to make decisions around medication example questions
• Assessment of capacity to revoke a LPA example questions
• Assessment of capacity to appoint a LPA for property and finances sample questions
• Capacity to decide as to residence example questions
• Capacity to decide as to contact with others example questions
• Capacity to consent to sex
• Capacity to Litigate
• Capacity to make or alter a Will (Testamentary capacity)
• References

 

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. SCIE

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. 

ALL YOU NEED TO KNOW ABOUT MENTAL CAPACITY ASSESSMENTS

 

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
1	Can you tell me where you live?
2	Can you explain what a Tenancy Agreement is?
3	Have you seen a Tenancy Agreement before?
4	Can you tell me who the tenancy agreement is between?
5	Who will be the tenant?
6	When will the tenancy start?
7	How much rent will you pay?
8	Who will pay this rent?
9	Who will you pay the rent to?
10	How will you make payment?
11	What services would you be provided with?
12	What other services do you have to pay for?
13	How will you pay your council tax?
14	How will you apply for your housing benefits?
15	Housings obligations
16	The right to end tenancy if conditions are breached.
17	Who is responsible for repairs and maintenance?
18	Do 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
1	Who manages the money in your household?
2	What do you need to pay for/what are your outgoings?
3	Do you have any difficulties in taking your money out of the bank?
4	Do you have any savings?
5	Do you need any help with your money?
6	Does anyone help you with your money?
7	How do your bills get paid?
8	Can you tell me where you keep copies of bills/statements?
9	Are you in full receipt of your benefits?
10	Do you know what you are entitled to?
11	Roughly how much do you receive?
12	How is your care funded?
13	Do you need any help to get the benefits you are entitled to?
14	Does anyone owe you money?
15	Can you always pay for essential items?
16	Do you sometimes run out of money? What happens?
17	Where do you keep your money?
18	How much money do you have in your purse/pocket?
19	What are you planning on spending it on?
20	What are these coins/notes?
21	Can you give me 35p from the coins?
22	Can you give me a £10 note?
23	How do go about getting things from the shops?
24	If you had a £14.50 bill to pay but you wanted to go out with your friends, what would you do?
25	What is more expensive – a pint of milk or a packet of cigarettes?
26	Do you have any savings?
27	Where are your savings held?
28	Can you remember your PIN for your debit/credit cards?
29	What do you do to help you remember your pin?
30	Do you do online banking?
31	Have you given your PIN or passwords to anyone?
32	Do you receive any help with your money?
33	Are you happy with the help you get with this?
34	Is there anyone you would like to help you with your money?
35	Is 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
1	Do you have good or bad days?
2	Tell me about a good day?
3	Tell me about a bad day?
4	Are you able to cook your own meals?
5	How do you do this?
6	Could you scald or burn yourself when preparing your own meals?
7	Do you access anything in the community?
8	Do you use any walking aids?
9	Have you experienced any falls in the past? How recent?
10	Can you safely use your home?
11	How do you access the community?
12	Do you go to the shops?
13	Is the post office far?
14	Do you like to go on walks?
15	Do you like to swim?
16	Does anyone support you with food shopping?
17	Are you on any medication?
18	Are you able to self-medicate?
19	What times do you take your medication?
20	Do you need someone to remind you to take your medication?
21	When did you last have your medication reviewed?
22	How is this paid?
23	Do you rent this property?
24	What benefits are you on?
25	Do you manage your own money?
26	How do you pay your bills?
27	How do you budget your money?
28	Do you ever run out money? If so, what happens then?
29	Can you use the toilet independently?
30	Do you have a shower or bath at night, do you prefer it in the morning?
31	Do you have anyone to support you if you could not get into the shower yourself?
32	Would you ask for help?
33	How do you change your bedding?
34	How are you with putting clothes on?
35	Do you see your friends and family?
36	How do you make contact with them?
37	When was the last time you saw them?
38	Are you seeing them this week?
39	Are there any children you care for?
40	Do you care for an adult?
41	Can you tell me in what way you provide support?
42	Do you feel that you need support to manage your day to day living?
43	What areas do you feel you need support with?
44	OR why do you feel that you do not need any support?
45	What sort of support do you need?
46	Who will be providing you with the support?
47	What would happen if you did not have any support or refuse it?
48	Carers 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
1	Do you take any medication?
2	What medication do you take?
3	Who prescribed it to you?
4	Why do you take these medications?
5	Are you able to read the medicine labels?
6	What support is needed to apply your creams or use an inhaler?
7	How do you store your medication?
8	Where is your GP practice?
9	How do you attend GP or hospital appointments?
10	How do you ensure that you do not miss your medication?
11	Do you have any nutritional needs that may affect when you take your medication?
12	Who do you contact if you have questions around your medication?
13	When did you last have your medication reviewed?
14	Do you need any support with your medication?
15	Do you take any medication?
16	What medication do you take?
17	Who prescribed it to you?
18	Why do you take these medications?
19	Are you able to read the medicine labels?
20	What support is needed to apply your creams or use an inhaler?
21	How do you store your medication?
22	Where is your GP practice?
23	How do you attend GP or hospital appointments?
24	How do you ensure that you do not miss your medication?
25	Do you have any nutritional needs that may affect when you take your medication?
26	Who do you contact if you have questions around your medication?
27	When did you last have your medication reviewed?
28	Do you need any support with your medication?
29	How do you store your medication?
30	Where 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.
1	Who are your attorneys?
2	How long have you had X as your attorney?
3	Why do you want to revoke the power of attorney?
4	How did the attorney manage your money?
5	What authority do they have?
6	Do you want to appoint someone else as a LPA?
7	Who are you appointing as a LPA?
8	Why have you chosen this person?
9	Why have you not chosen anyone else?
10	If 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?
11	What are your attorneys?
12	How long have you had X as your attorney?
13	Why do you want to revoke the power of attorney?
14	How did the attorney manage your money?
15	What authority do they have?
16	Do you want to appoint someone else as a LPA?
17	Who are you appointing as a LPA?
18	Why have you chosen this person?
19	Why have you not chosen anyone else?
20	If 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.
1	What is an LPA document?
2	What is an LPA?
3	Why do you want to appoint an LPA?
4	Who are you appointing as a LPA?
5	Why have you chosen this person?
6	Why have you not chosen anyone else?
7	What power are being given to the Attorney?
8	Why do you need someone to manage your finances?
9	Why do you need someone to manage your property?
10	Do you think there is the risk of potential financial abuse by the attorney?
11	Are you aware that the attorney can have full access to your money?
12	Are you aware that they may access money without your authorisation as they will be acting on your behalf?
13	If 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?
14	Are you aware that the attorney can collect your benefits or pension?
15	Are 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);
1	What is the difference between living somewhere and visiting it?
2	What activities they would be able to do if he lived in each place?
3	Whether and how he/she would be able to see his/her family and friends if he/she lived in each place.
4	In relation to the proposed placement, that he/she would need to pay money to live there
5	That 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;
6	Who he/she would be living with at each placement;
7	What sort of care he/she would receive in each placement in broad terms.
8	The difference between living somewhere and visiting it
9	What activities they would be able to do if he/she lived in each place
10	Whether and how he/she would be able to see his family and friends if he/she lived in each place.
11	In relation to the proposed placement, that he/she would need to pay money to live there
12	That 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;
13	Who 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.
1	Who are the people you have contact with?
2	What is the nature of your relationship with them?
3	What 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?
4	The 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.
5	What 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
1	The mechanics of the act (to understand its sexual character)
2	That vaginal intercourse can lead to pregnancy
3	There are significant health risks caused by sex such as sexually transmitted diseases
4	That 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:
1	The party or intended party would need to understand how the proceedings were to be funded;
2	They would need to know about the chances of not succeeding and the risk of an adverse order as to costs;
3	They would need to have capacity to make the sort of decisions that arise in litigation;
4	Capacity 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.
5	For 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:
1	Understand the nature of making a Will and its effects.
2	Understand the extent of the property of which they are disposing.
3	Be able to comprehend and appreciate the claims to which they ought to give effect.
4	Have 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.
5	Understand 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

• https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
• https://www.scie.org.uk/mca
• http://www.mentalhealthlaw.co.uk/Mental_Capacity_Act_2005_Code_of_Practice
• https://www.mind.org.uk/information-support/legal-rights/mental-capacity-act-2005/overview/
• http://www.legislation.gov.uk/ukpga/2005/9/contents
• https://www.nice.org.uk/guidance/ng108
• https://www.39essex.com/
• https://www.empowermentmatters.co.uk

 

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