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

[CarolineFields]

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!

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

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.

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.

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?

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....

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.

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.

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

Exactly this.

I get it can be frustrating but in no society should a court be assuming anything. Courts should act on facts and evidence. If it’s a fact that an assessment can’t be carried out because of lack of cooperation, then that fact should be taken into account.

Also, Harold Shipman. Do you really want to live in a world where a single GP can make a simple statement and a court assumes you lack mental capacity? Surely you wouldn’t agree to that?

I get it can be frustrating but in no society should a court be assuming anything. Courts should act on facts and evidence. If it’s a fact that an assessment can’t be carried out because of lack of cooperation, then that fact should be taken into account.

Also, Harold Shipman. Do you really want to live in a world where a single GP can make a simple statement and a court assumes you lack mental capacity? Surely you wouldn’t agree to that?

This.
If a case goes to court, the capacity issue isn’t solely based on the GP assessment. Yes, a health professional needs to compete their assessment.
But also, a social worker needs to complete their witness statement along with submitting their mental capacity assessment, Best Interest decision and support plan.
The judge will consider all of these documents so any decision should not be made solely on the GP assessment.

As far as co operation aspect goes, this forms part of the assessment but the health professional needs to put some context into this.

The rules around capacity are tight, and they should be. It's the hallmark of a civilised society that we do not deprive people of their liberty unless there is no other option. I've been on the tough side of this with my mum - she was in the Netherlands, but the rules are very simple. And things had to get really, really, really bad before my Dsis and I could get signoff for an assessment that my mother did not want. Yes, she would have been sectioned and placed in a care home against her will.

She died from a fall downstairs in her home four days before the assessment was due, going down to the kitchen for more alcohol. In many ways that was the best possible outcome for her. I don't feel that looser rules would have been better and might have saved her life.

no, I think that everyone should have the option of having an assessment to prove they DO have capacity

They dont have the capacity to be taken to court when they are not capable of understanding the proceedings or the outcome

A family friend has a similar situation. The DS is diagnosed as bi polar but everyone knows there is much more. He is thought to be schizophrenic as well as more. He can talk to people and appear lucid so no one will help. What the people he is speaking to don't know all he is saying is completely in his head. He will tell you his plans and what he will do in life, sounds reasonable to an outsider but everything he has said is based on his world view which isn't real. No one will help. He will hurt himself or someone else soon

If someone needs the option to prove they DO have capacity, that means an assessment has already been made that they don’t.

So if the person wants that rescinded, it’s this assessment that needs to be challenged or undone. The courts assuming something doesn’t come into it.

whatever - the current system simply does not work

People can be taken to court even if they don’t have capacity to litigate for themselves. The court will appoint a litigation friend to act on their behalf, who can instruct their solicitor, if they have one, and make decisions about the court proceedings on their behalf. If there’s a suitable family member or close friend, they can be appointed as litigation friend. If not, the court is likely to ask the Official Solicitor to act as litigation friend.

but they didn't. They just suspended the proceedings for an assessment of capacity to be made, then when the person did not agree to that, just shrugged their shoulders and continued with the court case.

I mean, what is the point of an assessment of capacity being ordered, then not carried out because the person does not have the capacity to understand that they need an assessment of capacity? If they had understood and cooperated, they would not likely to be a person that needed the assessment, would they

Capacity has to be assumed unless proven otherwise by a criteria

Then I can only assume that the court didn’t think there was sufficient evidence to rule that the person lacks capacity to litigate. If you’re confident that they do in fact lack capacity and you’re a party to these court proceedings in some way, you may need to try to get some legal advice about how you can go about submitting evidence to demonstrate their lack of capacity to the court and persuade the court that they need a litigation friend.

Well the system just does not work

It is too late for any of that now. But thanks

With the greatest of respect, the system hasn't worked in your experience and undoubtedly for others too. No system will work perfectly. But there are also lots of people who it does work for. The idea that everyone has capacity unless proved otherwise is incredibly important for autonomy and people's independence and well-being. It'd be awful if people did not have their wishes heard because they were thought to not have capacity when they do. My relatives with dementia may lack capacity in certain areas but they should absolutely be able to make their own decisions whenever possible.

but when somebody does not have capacity, you cant prove it

This system is disastrous