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GPs may have to assess mental health and mental capacity free of charge

A change in legislation could see GPs provide medical assessments for vulnerable patients with mental illness without remuneration, experts have warned.

Under a new law introduced from 1 October 2020, the Government has said that in cases where there is no valid medical or capacity assessment of certain mentally ill patients in care homes or hospital settings, including dementia sufferers, ‘we would expect this to be arranged through a person’s GP’.

There would be no extra payment to GPs because ‘valid diagnoses is something a person needs as part of their care and we would expect GPs to provide this’, the Government’s impact assessment states.

These assessments now extend to people in the ‘community’, meaning that potentially hundreds of thousands more patients will need medical assessments.

It is unclear as yet whether GPs will have to provide these assessments themselves, but GPs and legal experts fear that this may be expected under the new legislation, which will create a large burden of work on GPs.

Earlier this year, the Government announced its intention to replace the Deprivation of Liberty Safeguards (DoLS) with the Liberty Protection Safeguards (LPS) from 1 October 2020.

The DoLS – contained in the Mental Capacity Act 2005 – allow hospital or care home patients suffering a mental health disorder and who are not in a position to make decisions about their care and treatment arrangements to be deprived of their liberty.

A best interests assessor and a mental health assessor are responsible for assessing whether deprivation of liberty is needed for them.

The Government has argued that the DoLS is ‘complex, overly-bureaucratic and fails to provide safeguards for deprivations of liberty is certain settings’.

Instead, it has proposed to replace it with the LPS, removing the role of the mental health assessor and using existing medical evidence provided by GPs.

The DHSE’s impact assessment said: ‘The government introduced an amendment to the Bill which means assessments cannot be carried out by someone who has a prescribed connection to the care home. This means assessments cannot be completed by care home staff. In many cases there will already be valid assessments in place which have been completed as part of a person’s care planning but in other cases a new assessment will need to be arranged.

‘If there is not a valid medical or capacity assessment available, we would expect this to be arranged through a person’s GP. We would not consider this to be a new cost as having valid diagnoses is something a person needs as part of their care and we would expect GPs to provide this.’

According to Aasya Mughal, barrister and director of training provider Edge Training, an assessor currently receives between £150 to £400 for each assessment they perform.

Ms Mughal said with no funding attached GPs may bear the brunt of the legislative change.

She said: ‘At present, GPs are sometimes asked for their assistance with community deprivation of liberty cases, which means providing evidence to the Court of Protection.

‘However, these cases are far fewer than the number of people expected to be under the new law, which the government predicts to be around 300,000 people. If there is no existing expert evidence of a mental disorder that can be relied upon, the Government is clearly directing professionals to go to a GP at zero cost to the responsible body.’

GPs have also told Ms Mughal that they do not feel being best placed to diagnose mental disorders in this setting.

She said: ‘Some GPs we have spoken to feel ill-equipped to assess and diagnose mental disorder for the purpose of a deprivation of liberty. We are concerned that vulnerable people will be left without a proper assessment of their mental health which would stand up in court, falling short of the required human rights protections they are entitled to and the rest of us receive.’

Echoing her comments, North East London GP Dr Shahid Dadabhoy said: ‘Protecting the liberty of the vulnerable in our society is and always will be cost-intensive and resource-heavy task. How we safeguard the liberties of those who cannot speak for themselves is a reflection of who we are.

‘By stealth, the Government has decided to, completely un-resourced, unremunerated and with no training offered to general practitioners, burdened primary care with this enormous duty.

‘Colleagues who look after the most vulnerable in our society as GPs will bear the brunt of this. What trained specialist assessors have done for a decade or more is being laid in the hands of wholly unprepared GPs.’

A DHSC spokesperson said: ‘Under the LPS scheme, responsible bodies and care home managers are required to arrange all three assessments needed for authorisations, including medical and mental capacity assessments.

‘We are working closely with stakeholders to update the impact assessment and will publish in due course.’