Who can assess capacity:
The decision as to who is best placed to assess capacity depends on how complicated the assessment is and if the assessment is required for legal purposes.
Any doctor can make an assessment of someone’s capacity to appoint Power of Attorney (POA). For uncomplicated assessments of capacity to appoint Power of Attorney, Mental Health services ask that GPs assess in the first instance. If the Mental Health team is already involved, it may be appropriate to ask the Psychiatrist or team for an opinion if complicated.
Please note that where there is no concern about whether or not a person has capacity, a medical opinion is not needed to grant POA and the full process can be completed by a solicitor. VOCAL, which supports unpaid carers in Midlothian and Edinburgh, can also help prepare documentation to avoid fees, but requires the GP to undertake a capacity assessment as a solicitor is not involved. In that case, there will still be a GP fee and one for registration with the Office of Public Guardian.
Guardianship applications require two formal assessments (a report from a Section 22 approved Psychiatrist and a report from another doctor). This will be requested by the MHO or solicitor overseeing the case.
Members of the Health and Social Care Multidisciplinary Team can assess capacity to decide whether to progress to further intervention under Adults with Incapacity (AWI) Act. Such interventions could include applying for Guardianship or use of Section 13za. Section 13za allows the Local Authority to move someone who lacks capacity (but is not resisting) to a care home in the situation where the MDT and interested parties are all in agreement. If there is any doubt about the capacity assessment made by the MDT, it would be appropriate to seek a medical opinion.
Important factors to consider as part of the assessment:
- Capacity is task specific
- Capacity can fluctuate. Assess the person at their best time. Consider if it is appropriate to delay the assessment.
- Recurrent assessments can be helpful to demonstrate consistency
- Attempts should be made to communicate effectively. Use clear language and consider written material
- Consider other factors beyond cognition and communication that could affect a person’s ability to make a balanced decision. For example, coercion.
There is a proforma on the Resources and Links page, which can be used to guide the discussion with the patient during the assessment of capacity. Please note that this offers an approach to help support clinicians in making and documenting decisions, rather than a formal assessment form or requirement.
If you require a second opinion, please liaise with the appropriate local Mental Health Team.
C.M & A.B. 17-10-23
