Abstract
Mental capacity is the ability to make decisions, and this ability becomes especially important when the decisions may have legal ramifications. Since the Mental Capacity Act 2005 (MCA) and the accompanying Code of Practice (The Code) came into force in 2007, there has been an increased emphasis on the assessment of mental capacity. GPs are now expected to be able to assess mental capacity regarding a wide range of matters. This article gives an overview of the legal background, the ways in which capacity can be assessed and the occasions when it may be necessary.
The GP curriculum and mental capacity
The GP curriculum covers mental capacity in two areas:
What is the Mental Capacity Act?
People make many decisions each day that may involve something as simple as deciding what to eat for breakfast or as complex as buying shares. In the introduction to the Code of Practice, Lord Falconer states that the aim of the Mental Capacity Act (MCA) is to ‘empower people to make decisions for themselves whenever possible, and to protect people who lack capacity by providing a flexible framework that places individuals at the very heart of the decision making process’.
Clinicians are legally required to ‘have regard to relevant guidance in the Code of Practice’. This means that they must ‘be aware of the Code of Practice when acting or making decisions on behalf of someone who lacks capacity to make a decision for themselves, and they should be able to explain how they have had regard to The Code when acting or making decisions’. Both the MCA and its Code of Practice are easily accessible on the Internet and have been summarized in a further Office of the Public Guardian publication, ‘Making decisions—a guide for people who work in health and social care’. There is also a very good book called ‘Assessment of mental capacity—a practical guide for lawyers and doctors’ that has just been published by the British Medical Association (BMA).
Assessing mental capacity
When a person's mental capacity to make a decision is challenged, it is often when the person is thought to have a mental disorder such as learning disability, mental illness, dementia or a temporary impairment that may be due to an infection. Clearly, it is not possible to make a valid assessment of capacity by simply making a diagnosis, such as dementia. Assessing capacity can take a long time and several consultations. The MCA in Section 1 states that when assessing capacity, there are five key principles that need to be considered. These are listed in Box 1.
To decide whether a person has capacity, it is necessary to apply the two-stage test of mental capacity found in Section 2 of the MCA (Box 2). For there to be a need to assess capacity, there must be a medical condition that interferes with capacity, and the condition needs to make the person above the ‘diagnostic threshold’. If there is no medical condition, then the person will have capacity and the doctor will not need to be involved. So it is only if the answer to these questions is ‘Yes’ that the following tests from Section 3 need to be applied (see Box 3). It is important to emphasize that assessments concerning a patient's capacity to make decisions are specific to each particular decision at that specific time.
Key principles
Two questions used to identify whether a person may lack mental capacity
Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? This may be temporary or permanent. This is called the diagnostic threshold.
If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?
To have mental capacity, the person must fulfil all the first four questions in Box 3. It is important that every effort is made to communicate with the person being assessed, and this can be by any means including pictures and even blinking. It may be necessary to enlist the help of a speech therapist. Research has shown that capacity to consent is dependent upon the way in which the information is presented and that breaking up information into smaller chunks and using simpler language can aid decision making. It is also necessary to explain the decision in language that the person will understand, and it may be necessary to take the person to the actual place that is involved if for example, the person is deciding where he would like to live. The person does not have to retain the information for any longer than it takes to make the decision.
Key tests to assess mental capacity
Does the person have a general understanding of what decision they need to make and why they need to make it?
Does the person have a general understanding of the likely consequences of making, or not making, this decision?
Is the person able to understand, retain, use and weigh up the information relevant to this decision?
Can the person communicate their decision?
Is there a need for a more thorough assessment perhaps by involving a professional expert?
Capacity can fluctuate and if this occurs, then it is necessary to ask the person to make decisions when at his or her best. However, for the person to have capacity, he or she must also be able to understand what the consequences of that decision will be when at his or her worst (Case history 1).
Case history 1
Mr Jones is a 78-year-old man with gradually worsening dementia. He lived alone and both his neighbours and his home carers were becoming increasingly worried about his safety as he had been found wandering in the road, and often his meals were uneaten. As with many people with dementia, Mr Jones did have more lucid periods, and during these times seemed able to make some rational decisions.
After some discussion with his daughter, his GP decided that residential care placement would be the best option for Mr Jones, but Mr Jones refused to even consider placement in a residential care home. Was Mr Jones able to make that decision?
The MCA recommends that mental capacity to make decisions may need to be assessed on two or more occasions by different health professionals. In view of the serious nature of the decision in this case, it was decided that Mr Jones' capacity should be assessed by his GP and a consultant psychiatrist for the elderly. In addition, the opinions of the community nursing staff, his home carers, his close neighbour (who had been looking after him) and his children were sought.
It was decided that even when Mr Jones was lucid, he ‘lacked capacity to decide on his placement in his best interests’. This was because, although he could retain the information when lucid, he was unable to balance the information provided to come to an informed choice. He had no insight into his illness and so could not understand the risks that he would be running when he was at his worst if he continued to live on his own.
A decision was made in Mr Jones' best interests to move him into residential care. His daughter took him around a selection of homes with vacancies, and he chose the home that he liked best, as it was felt that he was able to make that decision himself.
Managing incapacity
Power of Attorney
When there are signs that a person is beginning to lose capacity, it is sensible to advise him or her to consider setting up a Power of Attorney, as this may prevent future problems. This is a deed by which one person (the Donor) gives another person(s) (the Attorney) the authority to act in the Donor's name and on the Donor's behalf. The Donor must have capacity when signing a Power of Attorney. The Attorney can be a friend, relative or anyone chosen by the Donor. If a doctor is to rely on the decisions made by an Attorney, then the doctor should see the legal documents to ensure that the authority exists.
An Enduring Power of Attorney (EPA) is an older form of Power of Attorney that can only be for financial and property affairs. Under the MCA, all new Powers of Attorney must be Lasting Powers of Attorney. Following the implementation of the MCA, an EPA can no longer be created but those created before 2007 continue to be valid.
A Lasting Power of Attorney (LPA) is the current means of appointing an Attorney to make decisions for a person. There are two types:
The LPA for property and affairs, which can be used even if the donor still has capacity (unless the Donor has specifically stated that it may only be used if he or she does not have capacity) and
The personal welfare LPA, which can only be used when the Donor is incapable
LPAs need to be registered with the Office of the Public Guardian and made active before being used. It is possible for donors to specify that the LPA only comes into effect if their GP confirms in writing that they lack capacity. The Attorney is required to act in accordance with the MCA and The Code.
A certificate provider is a person that the Donor must select to complete a Part B Certificate in the LPA form. Without this Certificate, the LPA is not valid and cannot be registered. A GP is eligible to be a Category B or skills-based Certificate provider and may be asked to be a Certificate provider for someone seeking to set up an LPA. The Certificate provider must confirm that in his or her opinion:
The Donor understands what an LPA is
The Donor understands the contents of his or her own LPA and what powers are being given to the Attorney(s)
The Donor is not being pressured, tricked or placed under duress by someone else to make the LPA
There is nothing else that would prevent the LPA in question being created.
If you have been asked to complete a Certificate, you must read the prescribed information in the form carefully. You must also read the LPA you are being asked to sign and ensure that you understand the provisions contained in it. If someone challenges the Donor's capacity to make the LPA, you may be required to explain to the Court of Protection your decision to sign the Certificate. It is important (and you will need to confirm on the form) that you have spoken to the Donor in private and without the nominated Attorney being present. If someone else is present when you speak to the Donor, you should state this on the form and the reasons why the presence of the other person was necessary. You should sign the form immediately after seeing the Donor as you are certifying that, at the time when you sign the Certificate, you are of the opinion that the Donor has the capacity to make the LPA.
Court of Protection
A Court of Protection order will set out how a person's affairs are to be managed if the person has become incapable and has not already appointed an EPA or LPA. A deputy (who may be a member of the family) is usually appointed. The court will require proof of lack of mental capacity which is provided by a doctor on the Court of Protection form COP3 ‘Assessment of capacity’. A person's capacity to make financial decisions can depend on the value and complexity of the property and affairs involved and the extent to which the person may be vulnerable to exploitation. Every person is entitled to privacy, but it may be necessary for the doctor to seek extra information such as the details of the amounts and the complexities of the assets.
Best interest
The ‘best interest principles’ in Section 4 need to be applied if a person does not have capacity. These state that decisions made on behalf of someone lacking capacity must reflect that person's best interest and should restrict that person as little as possible and that no determination of capacity should be made on a person's appearance, age or any eccentric behaviour. The MCA places emphasis on the support of a person in making a decision rather than on deciding that a person is incapable.
There is a checklist of factors that need to be considered before making a determination as to what is in the clients' best interests. For example, if the impairment of the brain is temporary due to pneumonia, then the MCA asks the question as to whether the decision can wait until the patient recovers. The cause of the incapacity should be treated as far as possible before the assessment, and if possible, the assessment should wait until capacity has been regained.
The aim is not to guess at what an incapable person would have wanted but to arrive at the best possible decision for that person. If the impairment is long term, then it is often necessary to have a best interest meeting of all the relevant parties including any next of kin/family. For example, it may be necessary for a GP to hold a best interest meeting before starting a patient on a new medication. Usually social services arrange the formalities for the meeting but it is a good idea to check that there is a chairperson, agenda and minute taker at the beginning of a meeting; otherwise, it may be assumed that it is the doctor who will do this. The doctor should give advice as how the medical condition affects capacity and not fall into the trap of making decisions. However, it is often the case that recommendations made by a doctor are followed.
Independent mental capacity advocates
The MCA states that an independent mental capacity advocate (IMCA) has to be appointed if there is nobody close to the patient, who is not a paid carer and who can be an advocate. The IMCA then has to be consulted before making any decisions. An IMCA cannot be used if there is already a named person who should be consulted about decisions, if an Attorney has been appointed under an LPA/EPA or the Court of Protection has appointed a welfare deputy to act on a patient's behalf. The role of an IMCA is to ask challenging questions and to help reach decisions but not to make the decisions. There is no need to instruct an IMCA if an urgent decision needs to be made about a patient's treatment, as this can be made in the patient's best interests. It is also not necessary to have an IMCA for decisions made under the Mental Health Act (MHA). It is now routine practice to make sure that there is an IMCA present at best interest meetings unless there is somebody who knows the patient well or family attending.
Situations when capacity is assessed
It is important to establish the right environment when assessing capacity. Try to ensure that the patient feels relaxed, which may mean that the assessment needs to be at the patient's home. The assessor needs to have a good rapport with the patient. It is useful to talk to the patient on his/her own initially, so that the patient feels empowered and that it can be shown that there was no undue pressure from anyone else. Be aware of the signs of distress in the person with learning disability during the consultation, which may just be a clenching of the hands or restlessness. Reading the patients' body language enables the doctor to gain some insight and empathy. It is useful to call in the carer and to ask the patient whether it is all right to speak to his/her carer. It is worthwhile to look at the rapport between the carer and person being assessed, so that you can see how the carer understands that person. Carers may be very helpful with provision of background information and also may assist you to understand patients with communication difficulties. However, be careful as this can result in the manipulation of situations by carers.
Doctors are asked to assess capacity whenever a decision is important and someone has doubts about the mental capacity of the client. People are most likely to doubt a person's capacity when he/she makes an unwise decision. However, the MCA says that people should be allowed to make eccentric, capricious or foolish decisions, provided that they have capacity. Tests for capacity are specific for each type of decision and these tests will now be explained further.
Capacity to consent to health and social care
Doctors regularly have to decide whether a patient has the capacity to consent to treatment and must ensure that the person has given valid consent before proceeding. The doctor needs to give enough information so that the information provided would have been considered sufficient by other responsible doctors in a similar position. It is necessary to include information on the nature of the procedure, why it is being done and the significant risks. It is also worthwhile to mention the alternatives to the treatment and the risks incurred from doing nothing. A dispute about whether a doctor has properly consented a patient may end up in court.
Sometimes the patient does not to want to know about his condition, and this can make it awkward to get consent. In these situations, it is important to provide the patient with the basic information. Doctors must try to give the patients sufficient knowledge to make a decision while respecting their wish not to know. This ‘uninformed’ consent is valid as long as the patient was given the option of knowing more. The exception to this is treatment for mental health reasons, when treatment can be given to a competent adult without consent under the terms of the MHA.
GPs commonly have to assess capacity for consenting to emergency treatment. The usual problem is that an elderly patient becomes confused due to an infection and refuses to go into hospital. In this situation, the patient does not have capacity as there is a temporary impairment of the brain. Patients can be told that they have to go to hospital and can be gently coerced into the ambulance by the ambulance crew. Ambulance crews are becoming more willing to be firm since they have been trained in the MCA. They will need to be happy with the reasons why the patient lacks capacity and that the admission to hospital is in the best interests of the patient. If the ambulance crew refuses to take a non-consenting patient to hospital, then calling the police is the final option. The MHA can only be used if there is a mental condition. If the MHA is used, then the patient will go to a Psychiatric Unit. Thus, the MHA cannot be used for treatment of a medical or surgical condition.
The MCA is explicit that an individual must have capacity to consent to all decisions relating to residential placement or other welfare decisions. If there is any doubt, then a mental capacity assessment should be carried out in accordance with the principles of the MCA.
Advance directives
The MCA formally recognizes the status of advance directives (living wills). Advance directives are becoming recognized as a way of people making their wishes known in situations where they are no longer able to make their own decisions. An advance directive must be made voluntarily, by an appropriately informed adult who has the mental capacity for the task. The ideal time to make an advance directive is in the early stages of a disease such as dementia, when the progression and future decisions are reasonably predictable and so medical professionals can give realistic guidance about future situations. Advance directives should be encouraged as they are helpful for medical professionals at a later date. Advance directives are also known as advance decisions to refuse treatment as they can only be used to refuse treatment and cannot demand provision of specific treatments. They are legally binding and do not have to be written except those refusing life-sustaining treatment which must be
specific to a particular treatment (e.g. refusal to have cardiopulmonary resuscitation)
written
signed by the person making the decision (or a representative if unable to sign) and a witness.
When the existence of an advance directive is uncertain or in an emergency, doctors can provide life-sustaining treatment until the position can be clarified. The medical defence societies can provide advice to GPs in difficult situations.
Capacity to deal with financial affairs
A large part of a solicitor's workload is giving clients financial advice. If the solicitor has any doubts about a client's capacity, then he/she may request the GP's opinion as to the client's capacity to deal with financial affairs. The checklist in Box 4 shows the ‘legal tests’ for financial capacity. This is the information a lawyer will expect a GP to know in order to make an assessment of a person's understanding of financial affairs. This list is not meant to be exhaustive but shows the wide range of information that may be required.
A suggested checklist of information needed in order to make an assessment of a person's understanding of financial affairs
Personal information:
Age and life expectancy
Social, cultural and family background
Medical and psychiatric history
The extent to which capacity could fluctuate
Amount of support needed
The extent of the person's property and investments:
Income, capital, expenditure and liabilities
The skills, knowledge and time required to manage business affairs properly
Whether the person would be likely to seek, understand and act on appropriate advice when needed
A person's vulnerability:
Could inability to manage business affairs lead to the person making rash decisions?
Could inability to manage lead to exploitation by others?
Testamentary capacity
A solicitor who is being instructed to prepare a will must first be satisfied that the client has the required capacity (i.e. testamentary capacity) to make a will. If the lawyer has any doubt about the person's capacity, a GP opinion may be sought. The lawyer often writes a formal request and supplies a checklist of topics for the GP to cover, which include assessing understanding of the meaning of death, the extent of property or debts, effects of making a will and the claims of others. It is vital to make thorough records of the assessment as wills are often disputed in court.
Occasionally, doctors may be asked to witness a signature, often to a will, and it may be inferred in so doing that the doctor is confirming the patients' ability to make a will. Thus, it is important to confirm what is required. It is recommended that physicians should only witness a signature when they have formally assessed testamentary capacity and satisfied themselves that on the balance of probabilities the patient has the requisite capacity. Doctors should make formal records of their examination and findings. Doctors should not witness a will if they benefit under it.
Capacity to drive
Driving requires a complex combination of mental and physical skills. Anyone who may lack capacity must inform the Driving and Vehicle Licensing Authority (DVLA). A GP should advise a patient to contact the DVLA if he/she has any doubts about the patient's capacity to drive. The DVLA will ask for a medical report and possibly refer the driver to a test centre for an assessment on whether the person is safe to drive, by a specialized instructor. A person can independently refer him or herself to any such test centre too.
Deprivation of liberty
The deprivation of a person's liberty is a very serious matter and needs to be differentiated from being merely restrained. It is the views of the patient, their relatives and the professionals that determine whether the person is being deprived of their liberty. Situations to which this may apply include those in which a person is prevented from leaving or locked in, situations in which a person is restrained or situations in which a person is given mood or mind-altering drugs without consent.
The DoLS are similar to those for assessing capacity and are provided in the MCA. The safeguards are that the GP, hospital or care home must seek authorization from a supervisory body in order to be able lawfully to deprive someone who lacks capacity, of their liberty. Before giving this authorization, the supervisory body (which may be the local authority or Primary Care Trust) will need to be satisfied that the person has a mental disorder and lacks capacity to decide about his or her own treatment or residence. The DoLS make it clear that people may only be deprived of their liberty in their own best interests to protect them from harm if it is a proportionate response to the likelihood and seriousness of the harm and if there is no less restrictive alternative.
For people with mental health disorders who have to be deprived of their liberty, professionals will have to decide whether detention under the MHA or the DoLS is more appropriate. Where a patient lacks capacity to consent for treatment for mental disorder, it tends to be more appropriate to apply provisions of the MCA since it is likely to be less restrictive. However, the MHA may be more appropriate when it is not possible to give a person the treatment that they require without depriving them of their liberty. DoLS legislation will usually apply to those whose mental health legislation is not appropriate, such as those with dementia living in a care home.
Medical tests used to assess capacity
The doctor who assesses capacity should include the points listed in Box 5. When asked to assess a person with a learning disability, doctors should not rely solely on previous reports of an ‘estimated’ mental age that may be misleading but ensure that a current assessment is made. An assessment by a psychologist may be helpful. It is important to remember that tests of cognitive impairment that reveal impaired cognition do not automatically equate to a lack of capacity as capacity depends on the decision that has to be made.
If the assessment is being carried out at the behest of a lawyer, then it is important to ask the lawyer for details of the particular question to be answered and to explain any legal jargon. In some circumstances, it is appropriate to charge for assessing capacity.
The doctor will usually just be giving an opinion as to the medical factors. There are sometimes factors, other than just the medical condition of a person, that can affect capacity. This may mean that the doctor's opinion is disputed and potentially the case could go to court. The Court of Protection is the final arbiter in any dispute.
A checklist of points a GP needs to cover in assessing capacity
Statutory tests in MCA
Legal tests
What does the patient need to understand to make the decision
Medical records and reports
Views of family and friends
Medical diagnosis using ICD-10 classification
Appearance and behaviour
Speech
Mood
Thought
Perception
Cognition
Orientation
Memory
Intellectual functioning
Insight
Personality disorders
Key points
The assessment of capacity can be summarized: understand, retain, weigh and communicate
Obtain detailed information before undertaking a mental capacity assessment
Always see a patient before assessing capacity
Legal tests and knowledge are needed to assess capacity competently. Be careful—capacity assessments can have legal consequences. A capacity assessment is time and place specific.