How robust is your capacity assessment?
The difficulty of obtaining material that is likely to have any real evidential value, certainly when dealing with GPs, is well documented, and Stephen Lawson’s article ‘The Golden Rule – time to move on’ in Trust Quarterly Review (Vol8 Iss3) makes forceful points about the evidential weakness of material that is in apparent but perfunctory compliance with the Golden Rule. In particular, he criticises the use of the ‘mini mental state examination’ – a test that was never designed to be anything more than a basic screening test for dementia patients. Although the Mental Capacity Act 2005 (MCA) guidance requires no specific forms be completed to demonstrate a person’s capacity, it is clear that the evidential documentation must indicate whether the various criteria outlined in the two-stage capacity test are met. Without this information it is difficult to prove a person’s capacity either way. To this end many forms have been devised in the healthcare arena that fulfil this requirement. Most notably, the MCA2 seems to be the form of choice for an increasing number of NHS Trusts when any significant decision involving capacity is made.
Considering the importance of being able to qualify one’s assessment of capacity, it may be surprising that no specific legal format has been devised for the recording of capacity, and also slightly worrying that the large majority of reports from GPs and consultant psychiatrists make scant reference to the two-stage test when justifying their decision. For those unfamiliar with the two-stage test, it initially asks: ‘Is there an impairment of or disturbance in the functioning of the person’s mind or brain? And is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?’ If the answer to this is no, then the assumption is that the person has capacity. If the answer to this is yes, then the next stage of the test must be followed. The second stage of the test (or functional test) dictates that the person is unable to make a decision if they cannot (1) understand information about the decision to be made; (2) retain that information in their mind; (3) use or weigh up the information as part of the decision process; and (4) communicate their decision. If a person lacks capacity in any of these areas, this represents a lack of capacity (Mental Capacity Act 2005: Code of Practice). Incidentally, even if the person being assessed does not display any impairment to the functioning of the mind or brain, it would be useful to document why the person met the second part of the test – just in case there was an impairment that had not been detected.
The court’s view
The importance of good documentation is well known and summed up nicely in the (unpublished) judgment CoP No 11663606. Here Senior Judge Lush weighs up the evidence of certificate providers and experts in the same way, ultimately preferring that of the certificate providers (in support of capacity) to that of the expert (negating capacity). He describes the certificate providers’ evidence as: ‘The best evidence that the circumstances will allow. It is the only evidence we have that is both issue-specific and time-specific, so far as it addresses Mrs B’s specific ability to create [a lasting power of attorney] at a specific time.’
To illustrate this in more recent practice, in a case that I have been asked to keep anonymous an assessment by one of our nurses regarding an individual’s capacity was challenged by a consultant psychiatrist (the nurse believed the person to have capacity, the consultant did not). The nurse’s finding was supported by a four-page report outlining the assessment in full and referencing the MCA and the two-stage test. The psychiatrist, on the other hand, produced a document that (including the large amount of spacing) spanned just over a side of A4, part of which was a paragraph indicating his willingness to undertake further work for a small fee. His note merely stated that he didn’t think the client was capable of making a decision with capacity, and gave scant reference to the two-stage test or the actual assessment itself. Needless to say, the Court ruled in favour of the report produced by the nurse. This shows that any report needs to be clearly referenced and must give a thorough account of the assessment process, including whether anyone else was present and any difficulties encountered, regardless of the final outcome.
In addition to the need for good documentation, I believe this raises another important issue in relation to the robust assessment of capacity: the validity of qualifications. I recently had a conversation with a consultant psychiatrist who stated: ‘When it comes to capacity and the courts, it’s all about the badges, and as a consultant psychiatrist my badge is the gold standard!’ While there can be no doubt that badges are essential, I would argue that those badges that have for so long been taken for granted are changing. While guidance from the Office of the Public Guardian indicates those who are deemed to be acceptable as lasting power of attorney certificate providers, and the advice around testamentary capacity and Court of Protection (CoP) applications clearly states that it needs to be given by a registered medical practitioner, it appears that the courts are beginning to take a slightly different view. For example, several successful test cases have gone through the CoP allowing other professions, such as appropriately qualified mental health nurses, to complete CoP3 forms – not strictly in keeping with the guidance that it should be a medical practitioner. A further illustration of the issue of badges is the head of safeguarding for Essex County Council. She wrote the local policy on deprivation of liberty safeguards for inpatient psychiatric units, designed the MCA2 form that is now widely in use in the NHS, wrote guidance on s8 of the MCA and teaches s12 (Mental Health Act) doctors. She is undoubtedly an expert on the MCA and its practical implementation. Her qualifications? She is a systemic psychotherapist.
As illustrated by the anonymised case above, the notion that having initials after your name makes you an expert in the area of capacity is being challenged in the courts, and the traditional ports of call do not always meet the standard. So if qualifications alone do not make an expert, what does constitute an expert in the field of mental capacity? A legal definition does not appear to exist, but the Crown Prosecution Service defines an expert as a person 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, I would argue that an ‘expert’ should have a minimum of three 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 notion that having initials after your name makes you an expert in the area of capacity is being challenged in the courts
As with any skill, in order to maintain it, the assessment of mental capacity needs to be regularly reviewed and updated, and the expert should be able to demonstrate regular continuing professional development in the field. Incidentally, I also wonder how the notion of acting in a client’s ‘best interest’ would stand up to the challenge of using a GP over an expert. Granted, there is the argument that the GP already has a relationship with the client, but I wonder how many, if asked whether they would prefer to see an expert to ensure that the assessment is as robust as possible (especially when the costs are similar and a quicker turnaround can be achieved), would opt for the expert over the GP.
It seems to me that when it comes to producing a robust assessment of capacity two key factors need to be present. First, the assessor needs a full working knowledge of the MCA 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. Second, there needs to be a contemporaneous, in-depth report confirming how the client does (or does not) meet the criteria of the two-stage test, as well as the criteria of any relevant case law. To this end the report should contain direct quotes and a detailed timeline of events and the conversation. I would hazard that not one of us would be happy to produce a report that did not meet a certain standard, so why accept it from other professionals? Obviously, even with all the above criteria met and the greatest amount of due diligence on the part of the instructing solicitor, there will be times when even the combination of expertise and good documentation will be successfully challenged in court. That, however, will not be a cause for any shame or embarrassment (or a negligence claim!) if the assessment has been carried out correctly.
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