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As is often the way with the introduction of things like the Mental Capacity Act, the pre-inception worries and fears were not seemingly realised once the new statute was introduced into the clinical arena. We are still in the early phase whereby it is now slowly embedding itself into clinical practice and hopefully the collective healthcare consciousness.

From the psychiatric viewpoint there were concerns that it would herald a surfeit of extra work because of the misnomer in the naming of the new Act. Unfortunately the ‘mental’ in the Mental Capacity Act (MCA) has been erroneously, but understandably, perceived by some as making this new statute the bastion of the mental health services and in particular, psychiatrists. It surely should have been named the ‘Capacity Act’ which would have more positively aligned itself with and reflected the first rebuttable assumption when assessing capacity – the starting point being that everyone is presumed to have capacity which needs to be disproved to make a finding of incapacity. I think the MCA may also have inadvertently propagated the myth that psychiatrists had pre-existing in-depth training and almost mystical knowledge of this area which was probably not the case (as the Department of Health often tells us, all doctors should be able to assess capacity).

A look at the implementation of the Mental Health Act (MHA) 1983 gives an insight as to how capacity is used within the MHA. Almost ectopically the issue of capacity does not actually have to be addressed, for example, in MHA assessments for the everyday sections implemented by psychiatrists i.e. sections 5(2), 2 and 3, nowhere on these section forms is there any reference to the patient’s ability to consent to treatment. Within the MHA is section 63 which can, in certain circumstances (e.g. force-feeding in anorexia nervosa patients), completely override the decisions of the detained but capacitous patient (s63 ‘Treatment not requiring consent’ – the consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering……if the treatment is given by or under the direction of the RMO). Indeed, MHA and Human Rights Act case law has clearly established that under the MHA it is lawful to treat detained patients with medication who have capacity to refuse treatment. A rather interesting anomaly is that the capacity test within the MHA – the patient is only assessed as to their understanding of the nature, purpose and likely effects of treatment – is different to the four limbed test used in the MCA!

On the practical front, the introduction of MCA, thankfully in my locality, hasn’t seemingly led to an increase in requests for ‘pure’ capacity assessments of older patients. I continue to receive sensible requests to provide second opinion ‘capacity’ opinions in complex cases of physical and psychiatric co-morbidity on the geriatric medical wards. However, one is sometimes never too far away from still receiving the social service non-decision specific request to ‘please assess this person’s capacity’! The local orthopaedic, gynaecological and genito-urinary (one referral but always be on the look out even in the elderly!) services to whom I have referred patients have seemingly grasped the capacity nettle with good awareness of capacity and consent issues in this age group and has led to some good pro-active joint working.

Further MCA teething problems I’ve encountered are mainly with the IMCA service and the implementation of LPA’s. Understandably, both the formation and practical introduction of a new service will have its inherent teething problems. The particular problem I’ve encountered a few times is with making a referral and, once it’s been accepted, liaising with the allocated IMCA. Sometimes following an MDT meeting a referral of an ‘unbefriended’ patient will be made by the nursing staff on behalf of the MDT but the IMCA service, for a while, insisted it was specifically signed off by the decision maker cited (usually the RMO and not the nurse filling in the form). As is often the way in community-based services, where clinicians are out and about travelling a lot, there is a fair degree of missing returned phone calls and the odd game of phone tag whereby each party keeps calling when the other is otherwise unavailable! This predictably is no different in communications with the IMCA service and can be frustrating and time delaying for both professionals.

Possibly the main problem is the length of time it seems to take for the IMCA to see the patient, gather all the relevant information and produce their report (currently it seems to take a few to several weeks to receive a report; I’ve actually only seen one completed report to date). During this time, even in the world of old age psychiatry clinical situations and management plans can change relatively quickly, which may or may not further affect the capacity of the patient, which may or may not be transmitted to the IMCA. I was politely chastised by an IMCA for informing them of the move of a patient several miles away to a continuing care unit (still under my care) as the patient with dementia needed palliative care for rectal carcinoma. The IMCA felt there shouldn’t have be a move unless approved by them. I made the point that clinical situations change and decisions have to be made quickly and there are often other extraneous factors that impinge on management plans. The situation was assuaged when I explained the continuing care unit was still within the same Trust (I compared it to a move between wards in an acute hospital) and the original ward the patient was on was actually being shut in the next week, so the patient was going to have to move!

The delay in the initial assessment by the IMCA coupled with the hurly burly of the clinical setting has probably led to perceived problems, particularly with communication, on both professional sides. For example, a referral can be made for a patient assessed to lack capacity to decide on placement post-discharge, and during the ensuing wait for the IMCA involvement and assessment, an appropriate placement may be found, and there may then be the problem of do we wait for the IMCA and run the risk of losing the placement. However, on the plus side I’ve seen where an allocated IMCA has been part of this placement process from an early stage and visited care homes themselves on behalf of the patient.

With regard to LPAs my main concern is that the cost is potentially prohibitive or off-putting for many people (compared with the previous EPA). Bearing in mind many people may be put off because of perceived form filling legalities, as yet there does not yet appear to be a set fee structure or even guidance to which the solicitors advising should adhere. I specifically asked one solicitor about this and he told me he wasn’t too sure so asked a few of his colleagues and took a rough average (£400)! It seems that using a solicitor will cost a few hundred pounds for each separate LPA set up, which could easily run into four figure numbers for a couple wishing to set up both Personal Welfare and Property and Affairs LPAs. However one astute son of one of my patients gleefully alerted me to the fact that it is perfectly possible to do the process without the need of a solicitor by downloading the forms directly from the Office of the Public Guardian website and hence saving several hundred pounds (a ‘beating-the-system’ tip I soon passed onto and greatly pleased my father, a frugal ex-bank manager)! By doing it this way the fee for registering an LPA is £150 (see downloadable form OPG 506 – ‘Fees, exemptions and remissions’ which provides helpful advice on means-tested exemptions and remissions which may well be of benefit to the older person wishing to apply).

No doubt, with time any teething problems will improve and hopefully the relationships between statutory and healthcare professionals will similarly become smoother and more efficient.

Dr Martin Curtice
Consultant in old age psychiatry
Birmingham

BGS Newsletter, May 2008
Issue 16 ISSN 1748-6343 16