Capacity for what?

Problems in assessing mental capacity

For legal practitioners, determining client capacity is an essential process to protect and enable a client to live as independent a life as possible. However, where there should be cooperation between the legal and medical profession, there is often a gap in understanding in mental capacity assessment. Dr Amrit Singh, a consultant psychiatrist, describes the medical approach, in particular, how different illnesses and conditions might affect a client’s decision-making abilities.

I accepted the invitation to run a workshop at the annual Solicitors for the Elderly conference (see full report on page 21) with some trepidation. My initial thought was, “What do I know about capacity that the legal profession doesn’t know?” Teaching grandma about sucking eggs came to mind!

I was therefore very relieved when, after discussing matters with Elizabeth Holdsworth of Wace Morgan, she agreed that we should run it together. My contribution was to look at the issues of capacity from the medical perspective, whereas she would provide the legal perspective and bail us out when I put my foot wrong.

The more I thought about the workshop the more I realised that, for different professions, there is a different way of addressing this issue that vexes us all. However in my speciality of psychogeriatrics it perhaps vexes us many times in a day

The workshop participants were very knowledgeable and enthusiastic. There was active participation with sharing of information and discussion of cases along with highlighting the difficulties faced and ideas about how to be more effective in this area of work.

The first point that needed to be brought home was, when one is considering the capacity of an individual, one needs to be sure as to why we want to assess capacity, i.e. capacity for what? One can look at:

Capacity to consent to treatment;
Capacity to deal with financial affairs, (power of attorney, general enduring and maybe the continuing power of attorney, and advanced directives);
Testamentary capacity (capacity to make a will);
Capacity to consent to marriage or to engage in sexual activity;
Capacity to enter into contracts.

Essentially, capacity is a legal concept and the ultimate arbiter is the court. Intact ability to respond to a particular situation with appropriate appreciation and to act in one’s own self-interest is how it is defined.

At the workshop, I explained how the psychiatrist approaches this issue, and how he/she would make an assessment. Firstly, he has to know in his own mind why he is seeing a person and what capacity is being assessed.

Then, there is the issue of the person’s mental state as it is prevailing now and also how, historically, there is any evidence to suggest any variation in it. Some principles that have to be kept in mind when assessing capacity:

Do not determine capacity as: would a rational person decide what this person has decided?
Avoid basing any assessment of capacity on the decision itself but rather, on the thought process behind the decision;
Presume that a person has capacity till proved otherwise;
Encourage people to take for themselves decisions that they are able to take (Law Commission).

The important consideration is to see if the individual being assessed has any mental disorder that substantially impairs their ability. Consider their capacity to understand what is being discussed: can they grasp the facts, make their evaluation and convey their decision to the person assessing them? Finally, is this decision made freely, knowing what the consequences of the decision may be?

For the purpose of the psychiatric assessment, it is essential to obtain a good history and to verify the factual information. This might be done by cross-checking information from the GPs notes or talking to family, friend or carer.

After gathering all available information and taking a good history, the assessment would move on to the mental state examination. This, in fact, is the most essential part of the interview and assessment. There is a general process that psychiatrists adhere to, but there are variations and that depends again on which field a psychiatrist might want to explore in greater depth. Some of the common headings that give a clue to this examination are as follows:

Appearance;
Speech;
Mood;
Thinking processes;
Perceptual disorders;
Delusional ideas;
Cognitive functions;
Orientation;
Memory;
Insight;
Pre-morbid personality.

Once a total picture of the person’s present state of functioning is obtained, the psychiatrist can come to a diagnostic formulation. This evaluation would determine whether the person is suffering from a mental disorder within the meaning of the ICD 10 (International Classification of Disease, 10th edition), or within the definition of the Mental Health Act 1983.

If the assessment suggests that there is a problem, it may require further investigations, like looking at the cause of the problem. A good example would be a confused elderly person. He apparently lacks capacity but has a very clear history from others suggesting that he was quite able and independent just a few days previously. He could have had a stroke or could have had a mild heart attack. This would suggest that one may need to carry out investigations like blood tests, an ECG (electro-cardiogram), or a brain scan, depending on which way the evidence is pointing.

Similarly, a mildly confused individual you saw a few days ago is now totally dependent and unable to look after himself. He may have a chest infection or a urinary tract infection. He may need an X ray examination of the chest or a urine analysis. If he is suffering from either one of these infections he would need to be treated urgently and would be likely to make a full recovery. An important consideration is that this treatment may also mean regaining capacity.

It is vital to understand the bearing that ‘illnesses’ have on capacity whether this is physical or psychological. Therefore, in addition to the mental state being assessed, the physical state should also be checked in case there is a reversible condition or a condition that, although not reversible, if treated to a point, may affect the person’s capacity. A typical example is some one with an advanced state of a malignancy that can’t be operated upon and is causing considerable pain and discomfort. If this person’s pain can be controlled appropriately and the discomfort alleviated, then this person may be able to instruct his solicitor with some clarity and will be deemed to have capacity for the same.

The following question might come to mind: what type of doctor should the solicitor ask for advice in such matters? My own view is that every medical practitioner can assess capacity but only to a point. Some doctors take more interest in this matter and legal practitioners would be well advised to find who they are in their particular area.

The neurologist is the ultimate authority in matters of physical ailments of the brain where as the psychiatrist will know about the aspects of mental illness. The psychogeriatrician sits across this divide and, although he is by training a psychiatrist, he would deal with a lot of the physical problems and so might be best placed to deal with the problems experienced by an older age group.

When your client is functioning well and there is no reason to worry about their capacity, then it is an easy exercise. However, as the client’s solicitor, if you have been alerted to the possibilities of some doubts, then you must exercise more caution and be even more precise and exact than you normally would be.

In such situations, it is helpful to keep certain key elements in mind. For example, where, when and how would you make this assessment? You may wonder what is the relevance of all this?

One goes back to the principle that, if you want to do the best for your client then, if at all possible, you will want to enable your clients to exercise their rights to carry out their own decisions and wishes. At the same time, it is your duty to protect your client from doing something for which they have no capacity. You will also want to guard against a client being exploited by others, due to their infirmity.

In my practice, I would go to the patient rather than call them to a clinic. I would prefer to see them in their own surroundings where they are comfortable and relaxed. Being summoned to a clinic and then having to wait in a waiting room may be enough to cause a fair degree of anxiety and it could just tilt the balance a little to suggest a lack of capacity in a borderline case. Besides, visiting a patient (or client) is an ideal opportunity to be out of the office.

When would I visit? I always check with the individual when they have enough time. Don’t call at the same time as the chiropodist as this would have a negative effect on the patient’s ego, (invariably the corns hurt and so the chiropodist is preferred to you). However, another point to bear in mind is that some people with mild dementia are at their brightest in the late morning but are exhausted as the day goes on. So one has enquire that when is the person at their best.

Most people with mild dementia will have a restricted amount of concentration and patience. So, by the time you’ve spent time establishing a rapport, having a coffee and enquiring about the grandchildren, the client has run out of energy and is ready to retire to bed rather than discuss an enduring power of attorney. You will have to leave, not having achieved what you set out to do.

At the same time, it is essential to establish that personal link and relationship with the client. The obvious solution, therefore, is to make a couple of visits rather than hope to complete everything in one marathon session.

If there is a variation in capacity from day-to-day, then it could be helpful to ask the carer when would be a good day for your visit. Fluctuating capacity is quite tricky and needs even more care. In such a situation, it would be beneficial for you and the psychogeriatrician to carry out a joint visit where you could both make individual records but have a joint statement about capacity at the time of the assessment.

There is then the whole new minefield to consider of how different mental conditions may affect an individual and how this has a bearing on their decision-making abilities. Someone with dementia has particular problems with recent memories, whereas distant memories are intact.

A general rule of thumb for such cases: last memories in, first memories out. Things that happened years ago are remembered but latter events are hazy. Typically, he remembers his first wife and children with great fondness but can’t even recall being married again twenty years ago, let alone acknowledge his second wife, (and she is the loving, caring person now looking after him).

Equally, claims of the youngest daughter are not considered and she is the genuine carer, while the son who hasn’t been home in twenty years is remembered fondly, is given the credit for the care and is consequently rewarded for his perceived effort and devotion.

A depressed person will have a negative and morbid outlook. They will want to atone for things that they haven’t done; they may not want to consider their own needs and may even feel that they deserve some punishment. In consequence, you might find such a client wanting to give their possessions away, or not making appropriate decisions.

At the opposite end of depression is a manic episode. This severe mood disorder manifests itself with elation and a euphoric mood and/or delusions of grandeur. Such a person may conclude that he is rich. I remember someone who thought he owned the bank of England and consequently was making extremely generous donations. In addition, he sent me a cheque to buy a Rolls (he liked me). What surprised us all later on was that he was in fact quite wealthy and I could have bought a Rolls. Needless to say, when he was well he was careful with his money and the ward was sent a box of chocolates, flowers for the ward sister and a thank you note for me. During the phase when he was mildly high he could have ended up making some decisions that could have had dire consequences.

Finally, I would add that some cases are incredibly difficult and you may not be able to decide, with a reasonable degree of certainty, that a person has capacity or not. Unfortunately, the more complicated the circumstances, the more you need to be sure. If you find yourself in doubt and you can’t decide on capacity, then say so and let the court deal with the matter.

Dr. Amrit B. Singh is a consultant psychiatrist. He is happy to help with any queries and can be contacted at: SinghABSingh@aol.com.