GPs are sometimes reluctant to carry out mental capacity assessments if a solicitor requests one for a client. Dr Elisabeth Alton explains how your legal knowledge and experience can be key to changing their minds
For various reasons, GPs are not always happy to provide mental capacity assessments when solicitors request them, for example, as part of an application to the Court of Protection (CoP), or the preparation of a lasting power of attorney. This resistance can be quite often detrimental to the patient and their family at a time of great stress.
However, by taking a few simple steps, solicitors may be able to enable GPs to conduct assessments for their clients.
Solicitors have the knowledge to support and guide GPs on the law, which may give the GP confidence to provide the assessment. You may not be aware that most doctors receive no legal training, since this is rarely part of the undergraduate or postgraduate curriculum. So, when you initially contact the GP by letter, make sure you don’t write it in a way that is incomprehensible to a GP with little legal knowledge. Here are some things that you should consider including in your letter.
Following the Mental Capacity Act 2005
Organising your letter in simple, ‘bite-sized’ sections aligned to the Mental Capacity Act 2005 (MCA 2005) can make it clearer to GPs what they are actually required to assess.
For the purposes of the MCA 2005, the person undergoing the assessment (P) must have “a disorder of the mind or brain” that has led to the lack of capacity. This is usually a good starting point, given that the GP will have P’s full medical record.
To a solicitor, laying out clearly what is “the decision to be made” may seem straightforward, but to a legally inexperienced GP, it may not be so obvious.
It’s also helpful to state in simple language what this means for P, in terms of whether they are found to have capacity or not, or if a determination is not reached by the GP at all. This will give the GP the ‘backbone’ information they need to conduct a capacity assessment. For instance, if the assessment is to enable a deputy to be appointed by the CoP to manage P’s financial affairs, a statement of what the duties of a deputy are and why they are needed will be useful. You could point out that this needs to form the basis of the capacity assessment.
The capacity assessment
The GP’s role is to perform the capacity assessment based on the information you have provided. Your letter could encourage the GP to let you know whether P can understand, retain, balance and communicate and, if not, why the GP has reached this conclusion.
A good assessment will include any comments made by P which have led the GP to form the opinion that P either has, or lacks, capacity. To help the GP understand the issue, you could ask in your letter if they will have any support in the assessment, and if they might consider performing the assessment at a time when P is most ‘alert’. This would probably encourage the GP to assess whether capacity fluctuated or not. It would be helpful to ask relatives or friends if P has ‘good’ times of day, and let the GP know.
The balance of probabilities and medical indemnity
Most doctors will be concerned by the catastrophic consequences of making mistakes. Pointing out that the doctor’s opinion is ‘on the balance of probabilities’ (that is, they only have to be more than 50% certain about their decision), may reassure some GPs. Currently, GPs’ indemnity will cover this type of medico-legal work at no extra cost. The new state-backed GP indemnity scheme, known as the clinical negligence scheme for general practice, may well not, in which case GPs will need to take out insurance to cover this type of work at a very small cost. This will also include other private work that GPs do, such as providing insurance reports.
As the MCA 2005 becomes more integrated into everyday medical care, GPs’ confidence around the legislation may grow. You could direct them to the following free online resources:
- the National Mental Capacity Forum
- the National Institute for Clinical Excellence’s new guidance on decision-making and mental capacity
- the MCA 2005 Code of Practice.
With an ageing population and a sharp rise in dementia cases, it is vitally important that GPs and solicitors work together to care for those lacking capacity. The medical fraternity need to understand this, and the impact of not providing capacity assessments. When the new liberty protection safeguards come into force, likely to be in 2020, GPs may well be required to provide capacity assessments for these, resulting in increased knowledge and confidence.