Mental Capacity Act and some of it's implications for GPs

As a section 12(2) approved doctor, I have to undergo annual refresher courses in

mental health law. Over the last few years the mental capacity act has become
almost dominant in the training. Most of this will not affect GPs, however I have
been worried about the level of understanding that most GPs have about the Mental
Capacity Act and how this lack of understanding could put them in legal and financial
jeopardy. Recently I attended another training day, run by a solicitor specialising in
mental capacity law. I asked him about the way that I practice, as I am always told
"well you are the only doctor who refuses to do this ....... or ask for this....... It was
very reassuring to be told that what I had been doing for many years was what I
should be doing and complied with the law and was completely defendable.
For many years now, our local old age psychiatrists have refused to be involved in
assessing mental capacity due to the legal risk. In part this may have lead to
attempts by solicitors to get GPs to express an opinion on Mental Capacity. Most GPs
will not be in a position to give a legally safe opinion on Mental Capacity without
further training.
In this discussion "her" covers "him or her" and is not meant to imply any form of
discrimination or sexism. It just saves me words typing.
The underlying philosophy of the MCA is to ensure that those who lack capacity are
empowered to make as many decisions for themselves as possible and that any
decision made, or action taken, on their behalf is made in their best interests.
The five key principles in the Act are:
1) Every adult has the right to make his or her own decisions and must be
assumed to have capacity to make them unless it is proved otherwise.
2) A person must be given all practicable help before anyone treats them as not
being able to make their own decisions.
3) Just because an individual makes what might be seen as an unwise decision,
they should not be treated as lacking capacity to make that decision.
4) Anything done or any decision made on behalf of a person who lacks capacity
must be done in their best interests.
5) Anything done for or on behalf of a person who lacks capacity should be the
least restrictive of their basic rights and freedoms.
To be eligible for the MCA the person must have an impairment of mind and be over
the age of 16
People who lack capacity
(1)For the purposes of this Act, a person lacks capacity in relation to a matter if at
the material time he is unable to make a decision for himself in relation to the
matter because of an impairment of, or a disturbance in the functioning of, the mind
or brain.
(2)It does not matter whether the impairment or disturbance is permanent or
temporary.
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(3)A lack of capacity cannot be established merely by reference to

(a)a person's age or appearance, or
(b)a condition of his, or an aspect of his behaviour, which might lead others
to make unjustified assumptions about his capacity.
(4)In proceedings under this Act or any other enactment, any question whether a
person lacks capacity within the meaning of this Act must be decided on the balance
of probabilities.
(5)No power which a person (D) may exercise under this Act
(a)in relation to a person who lacks capacity, or
(b)where D reasonably thinks that a person lacks capacity,
is exercisable in relation to a person under 16.
This next bit is important
Inability to make decisions(1)For the purposes of section 2, a person is unable to
make a decision for himself if he is unable
(a)to understand the information relevant to the decision,
(b)to retain that information,
(c)to use or weigh that information as part of the process of making the
decision, or
(d)to communicate his decision (whether by talking, using sign language or
any other means).
(2)A person is not to be regarded as unable to understand the information relevant
to a decision if he is able to understand an explanation of it given to him in a way
that is appropriate to his circumstances (using simple language, visual aids or any
other means). This places quite a time obligation on the assessor and other external
professionals may be needed such as a sign language translator or an interpreter or
electronic devices such as laptop or Possum devices
(3)The fact that a person is able to retain the information relevant to a decision for a
short period only does not prevent him from being regarded as able to make the
decision.
(4)The information relevant to a decision includes information about the reasonably
foreseeable consequences of
(a)deciding one way or another, or
(b)failing to make the decision.
Best interests
(1)In determining for the purposes of this Act what is in a person's best interests, the
person making the determination must not make it merely on the basis of
(a)the person's age or appearance, or
(b)a condition of his, or an aspect of his behaviour, which might lead others
to make unjustified assumptions about what might be in his best interests.
(2)The person making the determination must consider all the relevant
circumstances and, in particular, take the following steps.
(3)He must consider
(a)whether it is likely that the person will at some time have capacity in
relation to the matter in question, and this means that if you consider this to be the
case you must make further assessments
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and

(b)if it appears likely that he will, when that is likely to be. So if a patient
noted to be functioning better at a particular time of day, then the assessment has to
take place at that time of day, however inconvenient it is to the rest of your
practice/business.
(4)He must, so far as reasonably practicable, permit and encourage the person to
participate, or to improve his ability to participate, as fully as possible in any act
done for him and any decision affecting him. This means that as a doctor you need
to consider if medication is making the impairment worse and withdraw the
medication before undertaking an assessment.
(5)Where the determination relates to life-sustaining treatment he must not, in
considering whether the treatment is in the best interests of the person concerned,
be motivated by a desire to bring about his death.
(6)He must consider, so far as is reasonably ascertainable
(a)the person's past and present wishes and feelings (and, in particular, any relevant
written statement made by him when he had capacity),
(b)the beliefs and values that would be likely to influence his decision if he had
capacity, and
(c)the other factors that he would be likely to consider if he were able to do so.
(7)He must take into account, if it is practicable and appropriate to consult them, the
views of
(a)anyone named by the person as someone to be consulted on the matter in
question or on matters of that kind,
(b)anyone engaged in caring for the person or interested in his welfare,
(c)any donee of a lasting power of attorney granted by the person, and
(d)any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the
matters mentioned in subsection (6). Note the list of people you should consult. As a
GP is that do-able or practical
(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise
of any powers which
(a)are exercisable under a lasting power of attorney, or
(b)are exercisable by a person under this Act where he reasonably believes that
another person lacks capacity.
(9)In the case of an act done, or a decision made, by a person other than the court,
there is sufficient compliance with this section if (having complied with the
requirements of subsections (1) to (7)) he reasonably believes that what he does or
decides is in the best interests of the person concerned.
In the UK the capacity to make a decision, is time, question and decision specific.
That means that a patient can have capacity to make one decision and yet at the
same time not have capacity for another decision. This is at odds with almost every
other country, where patients are judged either to have capacity or not have
capacity on a blanket basis, not a decision basis. This means that when cases go to
the ECrtHR (European Court of Human Rights) strange decisions are reached as our
law is judged by the law basis of the rest of the EU.
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There is no obligation to do this work. I have this in writing from the BMA. The Eric
Rose question is also negative. There is no clause in your contract telling you this is a
GPs job. You will of course be told that you are the only awkward GP who refuses to
do this work, and you should be ashamed of yourselves and do it for the good of the
patient. If you fall for this moral blackmail then perhaps you deserve to appear in
court explaining your actions in several years time.
The sort of contact that GPs are likely to have with the MCA are in two circumstance.
1) a patient is wanting to make a will,
2) a patients relative or friend is applying for Lasting Power of Attourney (LPA)
and the solicitor writes to you.
At this stage you should start to smell a rat. Solicitors are trained, are well used to
and are quite good at accessing capacity. This is called Testamentary Capacity. The
fact they don't feel the patients is quite all there, means they will not just carry on as
they could do if the patient passed the test of Testamentary Capacity. They also
understand the legal risk and will not put themselves at risk, although they are
perfectly happy to put others at risk. So basically the solicitor is asking, "Hey you
doctor, are you ignorant enough of the law, or stupid enough to sign this. Now then
there's a good fellow. Just sign it". So patients who GPs get asked their opinion on
are a preselected high risk group, because the lawyers have dealt with the low risk
patients without involving you.
There is another problem with being asked to sign that a patient has capacity.
Remember the decision on capacity is Time, Question and Decision specific.
Suppose you pop out visit and assess the patient, (this is not NHS and you are
allowed to charge like X wounded charging rhino's) and you decide the patient has
capacity, you can go home and write a report for the solicitor which says "@ 12.05
on Wednesday 21//11/12, I assessed capacity and at that time the patient had
capacity. However you were not there, and so we could not examine whether she
understood the question (Come on can you explain a complicated will, and has the
solicitor bothered to send you a copy. No & No) and hence could not assess her
response. Unfortunately as you well know the law states that I do not know if she will
have capacity at another time. Luv and Kisses, A legal savvy doc"
So lets look at how this could be done to meet the requirements of the act and keep
the GP legally safe
1) Solicitor sends a request for assessment of capacity
2) You respond that you want a letter from him giving an undertaking to pay x
charging rhinos an hour for the time taken. Explain that you will do nothing without
this letter. It is best not to agree a fixed fee unless it is very large, as this work can
take many hours to do properly. Use Time tracking software for billing, like TEAM
time tracker which is freeware. If a solicitor gives an undertaking, the court will
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find your favour when you sue them for not paying. It is the magic word. I have sued,
won and enforced payment against a solicitor.
3) You then want an independently verified family tree of living members of the
family (there are professional Genealogists). Organising them and paying them is not
your problem. You also want contact details of those family members. Getting that is
not your problem
This is to satisfy
(6)He must consider, so far as is reasonably ascertainable
(a)the person's past and present wishes and feelings (and, in particular, any relevant
written statement made by him when he had capacity),
(b)the beliefs and values that would be likely to influence his decision if he had
capacity, and
(c)the other factors that he would be likely to consider if he were able to do so.
You still want to do this? You must be mad, or you are charging like a herd of
wounded charging rhinos and doing it properly.
You need to contact all relevant members of the family and record what they knew
of the patients previously expressed wishes
You then arrange to visit WITH the solicitor at a time to suit the patient as in "Best
Interests 3(B)"
You do a general mental state examination and MMSE. You then get the solicitor to
explain the will to you. You reduce the will to simple step by step bits. You now go
through this with the patient. You need to establish that the family that the client
remembers agrees with the family tree. If she has forgotten about one she fails at
that point as she cannot remember who she is giving the assets to.
So a patient should understand what assets she has and what the approximate value
of the assets are. The patient then has to remember this information on who the
family are and what the will says. If not then FAIL
Then the patient has to demonstrate the capacity to process and manage the
information and produce a decision
And then communicate that decision to you, and you might have to do all sorts of
stuff to achieve that.
And if the patient passes that you have to document the capacity assessment in
enormous detail, because in 5 years time when the will is used and the family go
ballistic, you need to have fireproof concrete knickers and the knowledge, notes and
records to blow the lovely lawyers out of the water. (Game, set and match).
If the patient fails you might have to do another assessment at another time.

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Now consider the case where you do 7 assessments. The patient fails the first 6, but
passes the 7th. Is that 7th valid. Probably not, It is certainly open to challenge. After
a number of assessments there comes a point where it is appropriate to feel that the
patient does not have capacity. So a positive result after many negatives is dodgy
unless the patient had organic medical problems affecting their mind which can be
demonstrated to have got better and improved the functioning of her mind allowing
her to regain capacity.
If the patient fails the assessment of Mental Capacity, then instruct the solicitor that
they need to be contacting the court of protection about this patient. You are the
"Decision Maker" in the terms of the act, but you do not need to carry it out. You can
delegate that to others, ie the solicitor. Make sure you have documented this, or the
solicitor will deny that you told them.
I hope this brief and believe me it is brief, jaunt into the world of mental capacity,
will have opened your mind to what is required legally, the stunts that solicitors pull,
the legal risks you run if you don't think in a legal way, and how to keep yourself
safe.

Dr RA Johnson
November 2012

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