Introduction

 

1. The assessment of mental capacity has become increasingly important as people tend to live longer and there is generally a rise in terminal illnesses, which may affect mental capacity in both cases. The validity of decisions which require a certain level of mental capacity may become an issue.

 

2. In your practice, you may be asked to assess the mental capacity of your patients. In this two-part article, we will highlight the principles of assessing mental capacity and the considerations involved in common scenarios to guide you when you are requested to assess capacity.

 

Key principles

 

3. Generally, there is a presumption that a person has capacity unless the contrary is shown, and this should be respected.

 

4. You may consider it may be more appropriate for a Neurologist or a Psychiatrist to make a mental capacity assessment? Not necessarily. The evidence of the treating or certifying doctors may carry more weight than an expert opinion by an independent doctor.

 

5. You cannot assess mental capacity without understanding the type of decision to be made by the patient, when the decision has to be made and what ability/ies is/are required to make that decision.

 

6. By considering how to gather information regarding the decision to be made, the method of communication should be sensitive to the patient's condition. This may involve a line of enquiry (for example, by putting together a questionnaire) to the patient and/or his family members (or whoever is involved in making the decision). Alternatively, a home visit may be more suitable. It may or may not be appropriate to include the family members, and the patient's preference should be known in advance. We recommend gathering as much information on the patient's medical and social history and background before the assessment.

 

7. It is important to remember that the assessment is of mental capacity rather than whether or not the decision is sensible or wise. It is for the patient to give weight to a particular factor in making a decision; just because you disagree with the decision does not mean that the patient lacks capacity.

 

How to assess mental capacity

 

8. The assessment of mental capacity is a three-stage test:- (1) functional; (2) diagnostic; and (3) causation nexus.

 

9. The functional test involves determination of whether the patient is able to make a decision on his own. The patient should be able to understand information relevant to the decision. It is not necessary for the patient to understand every element; demonstrating understanding of the main factors will suffice. The patient should also be able to understand the consequences of making/failing to make the decision.

 

10. Second, the patient must be able to retain information long enough to make a decision. Even if retention is for a relatively short period of time, this does not necessarily mean he cannot make the decision. He does not have to retain the information for longer as long as it is sufficient for the purposes of the decision. It is important to ensure that the information is precise enough for the retention in order to form an accurate assessment of the ability to retain.

 

11. The third requirement is perhaps the most difficult to assess. The patient must be able to engage in the decision making process and use and weigh the information in question. Again, it is enough to find capacity from the ability to weigh the key factors (Kings College NHS Foundation Trust v C and V [2015] EWCOP 80). You should be alert to the possibility of a mismatch between the patient's coherent responses and their ability to carry into effect their intentions as expressed.

 

12. The final requirement of the functional test is the ability to communicate the decision. The environment in which the patient is expressing the decision should be comfortable and not oppressive. If it is necessary, tools and aids should be used to bring out the patient's communication of that decision.  

 

13. Assessment of mental capacity often takes place with elderly patients who may have co-morbidities which could impair their ability to process information. The diagnostic test involves the assessment of any pre-existing impairment or medical conditions (and treatment) which may cause permanent or temporary incapacity.

 

14. Where such impairment or disturbance is temporary, you should consider whether the decision can wait until the circumstances have changed. For example, a patient may have mild to moderate Alzheimer's disease with episodic lucid periods where a period of observation is probably necessary to meet the appropriate time to assess capacity. In these circumstances, a second opinion from the relevant specialties may be necessary, such as a neurological or psychiatric opinion.

 

15. There must be a causal link between the inability to make a decision and impairment of the mind or brain (the causation nexus test). It must not merely be that the person has difficulty making a decision but that they cannot make the decision by reason of the impairment (King's College NHS Foundation Trust v C and V [2015] EWCOP 80).

 

16. Against the above tests and considerations, you should also bear in mind that oftentimes, there are other social factors at play such as conflict between family members or over-bearing family members who have different views as to what they consider to be in the patient's interests. You must be careful to objectively assess the interactions and dynamics between the persons involved in the background to ensure that there is no coercion or undue influence on the patient thereby affecting the accuracy of your assessment. If you are uncertain, we recommend that you seek legal advice as soon as practicable.

 

 

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Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice. Please contact [email protected] if you have any questions about the article.