Capacity and mental disorder

In the third and final part of his series on dementia, DR SINGH provides a medical perspective on the tests for assessment of capacity.

The presence of mental disorder doesn’t imply lack of capacity. Someone who has a mental disorder can have capacity in some or all domains. This is not a radically new statement but a reiteration of accepted principles of capacity assessment. In the medical field, the assessment of capacity is implicit in all our contact with patients. This is true of all patients, but especially so in the field of learning disability or old age psychiatry, where many perceive it as ‘bread and butter’ stuff.

The first issue to consider in the assessment of capacity is for what purpose the assessment is required. Essentially, the question is whether a person can make a particular decision at a particular time. Regarding the nature of the decision to be made, a person with Alzheimer’s dementia of moderate severity may have capacity to decide whether they want a bath, or have a cup of tea, or go out for a walk, but may lack capacity to make a decision about investing some funds in stocks and shares. Similarly, with regard to time, a person may have capacity at one point in time and then lack capacity for the same issue at another point in time. Typically, an unconscious person – who would therefore lack capacity – regains consciousness and is fully capable within a short space of time. Alternatively, a person with severe depression is not able to make constructive plans concerning their return to work, and is probably convinced that there is no possibility of their ever returning to their job. However, when bettera few weeks later, they have no worries about their ability to return to work and have capacity to make the appropriate decision.

The test of capacity is a two-stage process:

Whether the person has an impairment of, or disturbance in, the functioning of their mind or brain;
Is this sufficient to cause a lack of capacity to make a specific decision?

To assess a person for the presence or absence of a mental disorder, one conducts a typical psychiatric interview. There is a preamble to this and I would cover the following areas.

Background information

I would first ascertain the purpose for which the capacity assessment is required. I would gather as much background information as is relevant or often as much as is available. It may mean talking to the GP or other doctors involved, obtaining information from other professionals and gathering information from friends, carers, and relatives.

Armed with the background information, I meet the person and interview them. The core of my interview would be the mental-state examination. This part of the assessment would require me to consider a number of areas: appearance, speech, mood, thinking processes, perceptual disorders, delusional ideas, cognitive functions, memory and insight.

The next step is to enquire specifically about the issue in question and see if the person has the ability to:

Understand the information relevant to the decision;
Retain the information for long enough to make the decision;
Weigh the information as part of the decision-making process;
Communicate the decision in whatever way is appropriate.

I may want to use specific tools, such as memory-assessment tools or best-practice checklists, and so on. The more complicated the issue in question, the higher the threshold for the assessment performed. If the issue relates to the capacity to go out of a nursing home and shop for some clothes, then the capacity assessment of the senior care staff may be adequate. However, if it is to do with testamentary capacity in a person with two marriages and families in dispute, then my assessment threshold is going to be very high, and my assessment very detailed and precise.

However, the fundamental principles of the Mental Capacity Act would still apply and in fact be paramount in my work. It is worth mentioning that the Act underlines what was previously seen as good practice, but goes a lot further in clarifying some complicated issues and giving clear guidance in previously ambiguous practices. There are other new and helpful developments such as the new Court of Protection and independent mental capacity advocates. It has been generally well received and perceived as a big step forward.

Back at the interview, I would make every effort to facilitate the person in demonstrating their ability to make their own decisions and essentially to be capable. There are certain tricks
of the trade that help to facilitate a good interview.

Tips for a successful interview

Pick the venue that suits your client. The familiarity of their environment certainly helps, therefore visiting them at their home is always a good idea. There are however, rare occasions when it may actually be of benefit to do the opposite. If the person is in awe of the ‘caring’ family, then it may help to find a more neutral place where that subtle but palpable pressure is not there.

The time of day could be very important. Often, a person with early or moderate dementia may be at their optimum ability in the late morning period and have capacity, but be more confused, in the evening. Popping in
on the way home from work may not actually be that helpful. Also, you need to allow the appropriate amount of time. Often, one is taught to establish a rapport, spend time with the client, and then get down to business. Normally, this is excellent practice, but in someone with dementia, they may only have a relatively short span of clarity before tiredness and confusion set in. Spend too much time having a general chit-chat and talking of old times, and by the time you get to the essential part, it may be too late. You may want to make a few short visits rather than one prolonged, agonising and ultimately unproductive session. Ask the carers about what is the best time to visit your client.

A person with Parkinson’s disease
is at their optimum after they have had their medication, whereas the converse might be true of others – I am particularly thinking of the mildly anxious person or the slightly agitated person who has had their prescribed ‘fix’. After the intake of major tranquilizers your client may not be at their best! Again check with the family, carer or client on the best time to visit.

A person who has recently had a stroke may recover some of their abilities in the coming weeks. Another person who has had a stroke may be able to communicate with you by non-verbal means, in which case that method should be adopted. They may, for example, not be able to speak but can write, or can signal in another way. The Mental Capacity Act specifically discusses this aspect in some detail.

A person with depression could be deluded and even suicidal, and this clearly shows disturbed thought processes, and suggests that the person may not be at their best to make certain decisions. However, a few weeks later and with appropriate help and treatment, the same person could be a totally different individual. In such cases, it is wise to wait for the recovery.

The physical state of your client can dictate whether, on the day, they have capacity or not. A chest or water infection in an older person can lead to confusion. Even constipation in a person with mild dementia may make them less capable. Interview your client when these routine types of physical problems have been sorted out, for example, when the course of antibiotics has finished and the infection is clear.

People going through shock – for example, bereavement – may or may not have capacity, and people with intractable pain – for example, severe arthritis or even a terminal condition – can have moments when they are able to engage better and are relatively comfortable (often after the use of pain relief medication), and moments when they are not so able.

Someone who has Lewy Body Dementia, by the very nature of their condition, is going to have fluctuating presentation. See them on their good day.

Appearances may be deceptive. A person with even a severe psychosis and actively hallucinating (hearing voices), or with delusions in a specific area, could still have capacity in the specific area that you are interested in. Check with the appropriate person to see if your client is in hospital or being treated at home.

Despite all of the above, I know that I am a medical professional and capacity is a legal concept. If and when I get to the point of not being able to decide, I have a get-out strategy: refer to the experts – The Court of Protection. One of these days I just may have to do that and that is always a source of comfort.

Dr Amrit Singh is a consultant psychiatrist.