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AIBU?

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Original poster

to think that an assessment for mental capacity should not rely on cooperation

32 replies

CarolineFields · 12/05/2024 17:15

If someone is does not have mental capacity to make their own decisions, one of those decisions they are not capable of making is whether to cooperate with a test to see if they have capacity to make their own decisions.

I would have thought that was self evident.

I find it incredibly frustrating for a court case to proceed on the grounds that lack of mental capacity has not been proved, when it never will be if the person has to agree to be assessed.

Surely there has to be some way around this. Surely it could be made legal for a GP to state they have concerns about the mental capacity of a patient, and that should be enough for a court to assume the person does not have mental capacity UNLESS they agree to take an assessment which proves they do!

OP posts:
Shallysally · 12/05/2024 17:42

A Mental Capacity Act assessment is decision specific and should be completed by the professional who knows the person the best, or with whom the person interacts well with.
If this is a Court of Protection matter and the GP has been asked by the local authority to compete the COP3 form and you don’t agree with the outcome then you can raise this with the person’s social worker who can request an independent assessment.

If you want to be more specific I can help further.

Octavia64 · 12/05/2024 17:40

In the same way that everyone is innocent until proven guilty everyone has capacity until shown otherwise.

I agree it causes a lot of problems with elderly people but you really can't run the system any other way.

GPs often have not met the elderly person in years.

MistressoftheDarkSide · 12/05/2024 17:38

Ah, the joys of fluctuating capacity and the right to make "unwise decisions".

Place marking as it's pertinent to me too. Well, with regard to an elderly relative that is. Not my own capacity. But sometimes I do wonder....

Neverpostagain · 12/05/2024 17:32

Mental capacity is situation dependent. There is no one size fits all capacity assessment and of course you are right, in many cases a decision is made without cooperation. Are you able to be more specific about what you feel the person has or doesn't have capacity to do?

allowstatistical · 12/05/2024 17:27

Everyone is deemed to have capacity unless proven otherwise. There are strict requirements for proving lack of capacity though. However, in hospital we fill out the paperwork for lack of capacity when someone is unconscious or such severe delirium they can't take part in the assessment - that alone demonstrates the lack of capacity.

noctilucentcloud · 12/05/2024 17:27

CarolineFields · 12/05/2024 17:15

If someone is does not have mental capacity to make their own decisions, one of those decisions they are not capable of making is whether to cooperate with a test to see if they have capacity to make their own decisions.

I would have thought that was self evident.

I find it incredibly frustrating for a court case to proceed on the grounds that lack of mental capacity has not been proved, when it never will be if the person has to agree to be assessed.

Surely there has to be some way around this. Surely it could be made legal for a GP to state they have concerns about the mental capacity of a patient, and that should be enough for a court to assume the person does not have mental capacity UNLESS they agree to take an assessment which proves they do!

Mental capacity has many different aspects though - you can have capacity in one aspect (eg about where you live) but not another (eg to take part in legal procedings). It's not a simple thing to determine because you have to make sure a person can retain and weigh up information. I don't think a GP who possibly doesn't know the patient that well or hasn't seen them in a while could make that assessment without engaging in a capacity test. Thinking to my own relatives with dementia they have capacity for some decisions including some medical ones.

nj32 · 12/05/2024 17:19

I thought you had to assume mental capacity unless proven otherwise.