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Practice dilemma: Assessing mental capacity



Expert advice

Doctors are increasingly being asked to make assessments of their patients' mental capacity to create a legal document such as a Will or Lasting Power of Attorney, but you do have the right to refuse this.

It is important before you accept the request for you to be aware that if the validity of the Will or LPA is called into question, you may be called to provide evidence in court proceedings as to your patient's mental capacity. 

Your role is to provide an opinion rather than to act as the authority on whether someone has capacity. Under the Mental Capacity Act 2005 ("the 2005 Act"), the test for capacity is context specific.  For example, someone may have capacity to create an LPA but not to create a Will. 

The starting point for assessing capacity is that your patient is to be presumed to have capacity unless is it shown on the balance of probabilities that they do not. The test of capacity has two stages.

The first stage, known as the ‘diagnostic threshold', requires you to ask: Is there an impairment of, or disturbance in the functioning of, the person's mind or brain which means the person is unable to make the required decision?

There must be the presence of a medical condition or symptoms for you to have a role in assessing capacity. The impairment or disturbance must also affect your patient's ability to make the decision in question. As the test for capacity is time specific, if the disturbance is temporary, it may be possible to wait until such time as your patient has recovered before making the assessment. 

The second stage in assessing capacity is known as the 'functional test'.  The 2005 Act sets out the criteria for this test as being satisfied if the person is unable:

a)      To understand the information relevant to the decision;

b)      To retain that information

c)      To use or weigh that information as part of the process of making the decision, or

d)      To communicate their decision (by any means).

If you have taken all reasonable steps have to enable your patient to make a decision but in your opinion both the stages of the test are satisfied, then your patient is to be treated for the purposes of the 2005 Act as being unable to make the decision.

Although you should have a broad understanding of the legal tests outlined above, you do not need to have a detailed legal knowledge of the area.  You should insist on the following:

  • A letter of authority from your patient, and not a relative, to allow you to deal with a solicitor or other party in relation to the matter;
  • A proper explanation of any legal jargon with which you are unfamiliar;
  • Clear questions from the solicitor that you should answer;
  • Before providing an assessment of your patient's capacity to create a will:
    • information on the relevant circumstances to the case such as the assets within your patient's Estate;
    • information about your patient's family;
    • information about any potential claims on their Estate.

If anything in the instructions is unclear, you should ask questions of the solicitor so that you understand the nature of the document to be created and their patient's circumstances, as the threshold for capacity to create a legal document will vary, depending on the particular circumstances of the case.

Annette Campbell is a senior solicitor at Veale Wasbrough Vizards

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