There are increasing reports from legal professionals that GPs are either reluctant or declining to conduct mental capacity assessments. Dr Julian Sheather and Dr Peter Holden provide a GP’s perspective
GPs often have unique insights into the lives of their patients. Consultations can involve the discussion of highly sensitive personal issues that move beyond medical concerns. It is partly for this reason that GPs have traditionally been seen as patient advocates. Their role is to promote, as far as possible, the health and wellbeing of their patients. In addition, the unique medical knowledge – and data – that GPs have on their patients is frequently requested by third parties, including insurance companies, benefits agencies and occupational health professionals.
Partly in response to the changes introduced by the Mental Capacity Act 2005 (MCA 2005), doctors are increasingly being called upon to assess the capacity of their patients to perform specific tasks, such as making a will.
Solicitors, who have traditionally turned to GPs when they require capacity assessments for their clients, report that they are encountering reluctance from an increasing number of GPs, who say they are unable or unwilling to carry them out. This is not so problematic if the client is wealthy, as they can usually afford to pay for an independent expert. But this may not be an option for clients who do not have the resources.
Although it is difficult to generalise, there are several factors contributing to the reluctance expressed by some GPs to conduct capacity assessments.
This is an acute challenge for GPs. GPs’ core, patient-facing work is under enormous pressure. For some practices, workload issues are compounded by difficulties in recruiting a full complement of medical staff. Requests for non-contractual work are increasing, too.
Assessments of capacity, like the majority of third-party requests for information or expertise, do not fall within the terms of a GP’s contract. GPs are not under an obligation to carry out assessments, and if they do, they can charge for their time. To focus their limited resources on the health needs of their patients, doctors are either declining non-core work or charging more for it, in the reasonable belief that this will limit requests. Without proper resourcing, doctors have no alternative, irrespective of their feelings, but to prioritise the immediate needs of patients.
Lack of knowledge of the legislation
Capacity assessments necessitate a knowledge and understanding of the requirements of the MCA 2005. While most doctors know how to proceed lawfully where a patient lacks capacity, this does not always extend to the relevant legal tests in relation to capacity to perform specific tasks, such as making a will.
The General Medical Council imposes a clear obligation on doctors to act – medically – within their competence, and this includes medico-legal work. Given the potential importance of the issues at stake, any doctor uncertain of their knowledge in this area will be reluctant to go ahead with an assessment. This also raises the thorny question of legal liability and indemnity costs. Although health secretary Jeremy Hunt announced last year the roll-out of a state-backed indemnification scheme, GPs are currently bearing heavy indemnity costs and are increasingly wary of litigation. This can only exacerbate their reluctance to venture into medico-legal territory.
Lack of knowledge of the patient
Modern healthcare is also changing. Patients are increasingly mobile; GP practices are getting larger; and online and phone consulting is increasing. This all means that doctors are less likely to have in-depth knowledge of their patients.
As a result, GPs who do not have specialist expertise in testing for issue-specific capacity and may be unfamiliar with the requirements of the MCA 2005 can feel challenged. To have known a patient over a prolonged period can make it easier to identify relevant changes in cognitive and other mental capacities. To be asked to assess the capacity of someone who is effectively a stranger, who you may not have seen in a professional capacity for years, if at all, based simply on information held in their medical records, can be a big ask of a GP.
Where there is doubt about capacity, a proper assessment can, and should, take time. Support may need to be offered. Where the capacity of patients fluctuates, the assessment may need to be timed to coincide with their optimum functioning. Communication difficulties might have to be addressed. Doctors seldom get the opportunity to offer this much time to even their most seriously unwell patients. Where capacity may be finely balanced or particularly uncertain, many GPs will want to refer to specialist colleagues, such as old-age psychiatrists.
The frustration of solicitors when they cannot get a timely capacity assessment for their clients is understandable: they can be vital to the promotion of their clients’ interests. But GPs must prioritise the health needs of all their patients, providing those services set out in their contracts. In the current climate, with so much pressure on the system, even doing this to the standards they would like can be a challenge. GPs cannot be effective advocates for their patients unless they have the time – and this means a properly resourced NHS.