Mental Capacity Assessment England and Wales

Is your doctor the best person to conduct Mental Capacity assessments?

We ask guest Tim Farmer of Specialist Mental Health Practice, TSF Consultants.

mental capacity assessments

Tim Farmer

Mental capacity assessment is an inevitable part of Court of Protection work. It also impacts on setting up Wills and Lasting Powers of Attorney.  All professionals meet clients whose mental capacity is uncertain. Or which might be challenged later on. Many firms will contact the clients general practitioner for help with the capacity assessment. But some GPs are unable or not willing to assess mental capacity. So who do you turn too? As professionals we all have to meet the need to accurately asses clients mental capacity without inviting criticism or possible legal action. So what are the options?

General Practitioners are not always expert at mental capacity assessment – or as lawyers!

More and more doctors are either refusing to carry out mental capacity assessments or advising that the outcome of such assessments is questionable. A positive “maybe” in these circumstances is not much help! What we need to understand though is that G.P.s are ’general practitioners.’ They are expected to know enough about everything to at least signpost patients to the right specialist. They are expected to have a vast knowledge of many things but an expert knowledge of very little. So why would anyone expect all G.P.s to understand both the legal and medical aspects of mental capacity assessments?

Most doctors will at some point had some basic training around the mental capacity act and the two-stage test. But that may have been several years ago with no subsequent refreshers. So are G.P.s both able and willing to conduct robust and comprehensive mental capacity assessments or should we be looking elsewhere?

How well do General Practitioner’s know their patients these days?

Ideally patients would know their GP and so would feel more comfortable with them. But is that still true in these days of team practices where you may see your nominated G.P. rarely.  Patients see locums and other members of the practice far more often than their own G.P. Sadly, the days when GP’s had time to build a lasting, therapeutic relationship over the space of a half hour assessment and you always saw your own G.P. are long gone.

It would seem that the average turn-around time for mental capacity assessments from the G.P. is about 6 weeks. But clients are often trying desperately to take action very close to the very last opportunity to do so. That delay may be disastrous. It may well be a false economy to rely on the G.P.

Court of Protection.

Some doctors really do understand the impact of the Mental Capacity Act 2005 on the assessment of mental capacity.  But for others it is beyond both their comfort zone and their level of knowledge. If the CoP3 report that simply has one word answers is increasingly likely to be considered inadequate by the Court of Protection. Here is an example of one such: “The patient has capacity and meets the criteria as laid out by Banks vs Goodfellow”. This from a practitioner where a little legal knowledge means that have sent a woefully inadequate reply.

‘Expert’ a legal definition.

Having letters before your name meaning that you an automatically expert in the area of mental capacity assessment in the Court of Protection arena is no longer being automatically accepted. And many G.P.s recognise this.

So what then does constitute an expert in the field of mental capacity? A definitive legal definition does not appear to exist.  But the Crown prosecution service defines expert as a person who “who has relevant skill or knowledge achieved through research, experience or professional application within a specific field sufficient to entitle them to give evidence of their opinion”.

In the case of assessing mental capacity and drawing on my previous experience as the MCA lead for Liaison Psychiatry, DoLs Best Interest Assessor and a member of different safeguarding and dementia strategy boards, I would argue that an ‘expert’ then should have a minimum of 4 years assessing capacity on a regular basis (and by that I mean at least monthly) and should also be able to demonstrate a working knowledge of law and practice.

The need to keep updated.

As with all skills, in order to maintain it, the assessment of mental capacity also needs to be regularly reviewed and updated and the expert should be able to demonstrate regular CPD in the field. It is essential that the assessor has a full working knowledge of the Mental Capacity Act and its practice. Occasional assessments are not enough, in my opinion, assessment needs to be a skill that is regularly used, updated and evaluated.

The Future for Mental Capacity assessments.

I honestly believe the age of the General Practitioner being the first port of call for the legal profession is coming to an end. By using other experts who have specific understanding of and training in the Mental Capacity Act and its practical implementation the lawyer can be assured of more robust and timely assessments. I genuinely believe that this, rather than a reliance on the GP, is the future for Mental Capacity Act assessments within the legal setting.

Acticle based on an interview with Tim Farmer.