Dr Ellie Mein
Assessing capacity can be a complicated process, and knowing what to do isn't the same as knowing how to do it.
A GP called the advice line after receiving a letter from a female patient's solicitor. The letter requested a capacity assessment in relation to the patient, who suffered with dementia, making a Lasting Power of Attorney (LPA) for financial decisions.
The solicitor had tried to assess the patient's capacity but felt that her capacity was borderline. The GP was happy to perform the assessment (despite not being contractually obliged to do so), but was concerned about what questions should actually be asked and wanted advice on a list of questions he could use.
The MDU adviser explained to the GP that under the Mental Capacity Act (2005) (MCA), one should assume that a person has capacity to make a decision (like making an LPA) unless it can be demonstrated that they lack capacity to make that decision.
When assessing capacity it is important to ensure that all practicable steps are taken to help a patient make the decision themselves. Remember that capacity is time and decision specific.
The MCA outlines a two stage assessment for capacity. The first part is that a person lacks capacity about something if at the time in question they are unable to make a decision for themselves because of an impairment of, or a disturbance in, the functioning of their mind or brain.
The second part of the test relates to the assessment of the ability to make a decision and requires that the patient must be able to:
- understand the information relevant to the decision; this includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make a decision
- retain that information
- use or weigh up that information as part of the process of making the decision
- communicate their decision; this may be by talking, using sign language or other means of communication.
The GP in our scenario above was aware of the standard test outlined in the MCA 2005, but wanted more specific guidance on the practical aspects of assessing the patient's capacity.
It's not possible to provide a general list of questions that should be asked when assessing capacity because questioning for each individual patient and each specific decision will need to be tailored to the situation. The questions and discussion may also evolve depending on the patient's answers or questions they may have.
However, there are some principles that are helpful to consider when assessing capacity, in addition to the two part test described above.
- Have a clearly defined idea of what the decision to be made is, or what question needs to be answered.
- The patient should ideally be given the background to the assessment and the precise decision that needs to be made so that they have some context when answering questions.
- Ensure that you identify what information is relevant to the decision and convey this to the patient. For many doctors, this is relatively straightforward when the decision relates to a decision about clinical treatment, as it will be similar to the consent process. It is however more complex when decisions relate to non-clinical matters such as making an LPA.
- Paragraph 4.16 of the MCA Code of Practice offers some guidance on the point of what relevant information might be in this context, including the nature of the decision; the reason why the decision is needed; the likely effects of deciding one way or another; or making no decision at all.
- The Code of Practice goes on to explain that in some cases it may be sufficient to give the patient a broad explanation in simple terms. However, in other cases the individual may need more detailed information, especially if the decision could have 'serious or grave consequences'.
- Once the information has been given it can be helpful to check the patient's understanding by asking a series of questions.
- Try to avoid closed questions to which the patient can simply answer yes or no. Open questioning such as 'What do you understand about making a Lasting Power of Attorney?' or 'What impact do you think making an LPA will have on you?' invites a dialogue, which can be far more informative about the patient's capacity.
- Once the assessment is completed it is sensible to document what was discussed, including the information given to the patient, what questions were asked, what the patient's answers were, and what the outcome of the assessment was. You can then refer to this if you are asked to justify your findings at a later date.
- If there is any doubt at all about the patient's capacity then seeking a second opinion is an option.
Back to the scenario...
The GP and MDU adviser discussed LPAs and the above points regarding capacity assessments. The GP was also directed to the Office of the Public Guardian website (England and Wales / Scotland) which provides more information about LPAs and their implications.
As the solicitor was likely to be best placed to advise on the nuances of this patient making an LPA and the likely repercussions of doing so, it was suggested that the GP could liaise with the solicitor, with the patient's consent, to obtain details of what the relevant information to this decision would be.
It was also emphasised that if the GP was in any doubt over the patient's capacity to decide to make an LPA then they should make this clear to the solicitor, who could then get a second opinion on this point if needed.
Dr Ellie Mein
MB ChB MRCOphth GDL LLM
Ellie joined the MDU as a medico-legal adviser in 2013. Prior to this she worked as an ophthalmologist before completing her Graduate Diploma in Law in Birmingham.
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