From time to time in taking instruction, you will meet a client for whom mental capacity is uncertain. In many cases, you will contact the GP for assistance only to find that they are unable or not willing to assess. The question then becomes, where do you turn and how do you meet your obligations to the client without engendering yourself to criticism and/ or possible legal action.
Here, Tim Farmer of TSF Consultants explores the alternatives to the GP.
General Practitioners, not experts
Increasingly, we hear reports from legal professionals that GP’s are either declining to conduct mental capacity assessments or that the outcome of such assessments is questionable.
Yet in reality, is this really surprising? The term GP means ’general practitioner’ and arguably, as such they are expected to have a vast knowledge of many things but an expert knowledge of very little.
You would expect most GP’s to be able to identify cancer or depression and even have an understanding of their treatment, but arguably their depth of knowledge need only be sufficient to identify the need and then contact the specialist to complete the treatment. So it is with Mental Capacity.
Most, if not all, GP’s will at some point had some training around the mental capacity act and the two-stage test but for some that will have been several years ago and not revisited again. Is it right therefore to expect them to be able to conduct robust and comprehensive assessments or should we be looking elsewhere?
How well do GP’s know their patients?
There is the argument that the patient knows the GP and so would feel more comfortable with them. I wonder if this is more our expectations than the reality. Gone are the days when GP’s had time to build a lasting, therapeutic relationship over the space of a half hour assessment. Nowadays, the average GP has 5-10 minutes to see a patient and many people don’t see the same GP again and again; rather they take whichever slot is free with any doctor.
Furthermore, anecdotal evidence seems to indicate that the average turn-around time for mental capacity assessments from the GP is about 6 weeks – which considering their workload is understandable. Yet, clients or their families are often trying desperately to take action very close to the last opportunity to do so, presenting a certain sense of urgency. When there are experts, who can provide a fast turn-around, one would question why wait for the GP?
Court of Protection
Undoubtedly, there are some GP’s that are very proficient in the application of the MCA (2005). Yet for many this is beyond both their comfort zone and their level of knowledge. Indeed, the CoP3 report that simply has one word answers is increasingly deemed to be insufficient by the Court of Protection, as is the letter in support of testamentary capacity that simply states “The patient has capacity and meets the criteria as laid out by Banks vs Goodfellow”.
‘Expert’ a legal definition
It is clear then that the notion that initials before your name makes you an expert in the area of capacity is being challenged and the traditional ports-of-call do not always meet the standard. So if qualifications alone do not make an expert, then 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 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 practical implementation. This cannot be achieved by the occasional assessment but 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 GP being the first port of call for the legal profession is coming to an end. By using other experts who have a greater understanding of the Mental Capacity Act and its practical implementation the legal practitioner can be assured of more robust and timely assessments and I genuinely believe that this, rather than a reliance on the GP, is the future for MCA assessments within the legal setting.
Tim Farmer is Managing director of Specialist Mental Health Practice, TSF Consultants. Tim can be reached on tsf@tsfconsultants.co.uk or 0333 577 7020.
