Introduction

 

1. In the first part of this two-part article (published in the September 2022 issue), we discussed the key principles when assessing mental capacity in the medico-legal context. In this article, we will explore the considerations in assessing capacity for different scenarios which commonly arise in practice.

 

Consent to treatment

 

2. A patient has capacity to consent to treatment if he is able to understand and retain information relevant to the decision, believe the information, and weigh the information in balance to arrive at and express a choice (Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; [1994] 1 All ER 819).

 

3. The principles of informed consent apply, and a good starting point is section 2 of the Medical Council's Code of Professional Conduct. A patient must understand the information relating to the proposed treatment, such as the nature, purpose, effects, risks and benefits and alternative options (including why such options are not recommended). In line with the principles in Montgomery v Lanarkshire Health Board [2015] UKSC 11, a doctor should ensure that a patient is aware of the material risks associated with proposed treatment. Asking the patient to repeat or paraphrase the key information would be helpful to assess capacity.

 

4. As to retaining and believing the information, you may consider 'testing' the patient to see whether he is able to apply the information to his own situation. This may involve asking the patient to explain what his condition is and the proposed treatment, in order to assess whether he appreciates the efficacy of treatment.

 

5. In making the choice (to consent to treatment), you may consider whether the patient is able to communicate the reasons for making the choice (and also whether the reasoning is logical and plausible). Finally, the patient should state clearly (and this should be recorded the patient's medical records) what his choice is.

 

Testamentary capacity

 

6. In an ageing population with rising numbers of terminally-ill cases, testamentary capacity i.e. the capacity to make a will, is increasingly a litigious issue.

 

7. The patient should understand the nature of the act of making a will and its effects. He should understand the extent of the property he is disposing, and be able to comprehend and appreciate the decisions to be given effect. The patient should not be suffering from any disorder of the mind which influences his ability to execute decisions pursuant to the will (that is, in such a way which would not have been executed had he been of sound mind). (Banks v Goodfellow (1870) LR 5 QB 549)

 

8. The decision-making process may involve consideration of multiple assets, cross-jurisdictional issues and numerous interested parties. This could require the patient to make decisions with varying levels of complexity. The complexity of the information relevant to the decision determines the level of understanding or capacity required to make a will. As long as the patient is able to understand, retain and process the information specifically to make the decision, he is deemed to have capacity (even if the decision is unwise!).

 

9. The assessment may be complicated where a patient has fluctuating capacity. One way to manage this is to identify lucid intervals in an appropriate and comfortable setting to consider whether action could be taken in respect of the will at that juncture. Where there is (or is likely to be) a family dispute over the contents of the will, you may consider excluding all family members from the process to minimise the risk of undue influence and/or coercion on the patient.

 

10. Be very careful to determine the boundaries of assessing capacity in respect of each decision before witnessing a patient's signature on a will because this infers that you are confirming that the patient has capacity to make the will (thereby capacity to enter into a legal transaction). If in doubt, engage another independent doctor for a second opinion. A solicitor's presence is also recommended (Kenward v. Adams [1975] CLY 3591; Hoff v. Atherton [2004] EWCA Civ 1554, [2005] WTLR 99; Re Estate of Au Kong Tim [2013] HKEC 29).

 

Capacity to litigate

 

11. The threshold for assessing that a patient has capacity to litigate is high.

 

12. A patient's capacity to litigate depends on his insight and understanding that he has a problem for which legal advice is needed. Having identified the problem, it is necessary for the patient to instruct an appropriate adviser with sufficient clarity to understand the dispute and advise him. The patient must be able to understand and make decisions based on such advice, and also conduct the legal case with his legal advisers.

 

13. In practice, you may consider how the patient used to make decisions before his medical condition(s) deteriorated by, for example, conducting interviews with family members and friends. You may consider the level of functioning in everyday life e.g. the way in which the patient manages problems, what decisions he can make independently and what decisions may require help from other parties. A formal cognitive assessment (testing intellectual abilities, memory, language and executive skills) may be carried out by a Psychiatrist.

 

14. However, the most important test is still purpose-specific i.e. that the patient understands the legal problem or case, what has happened to him, the role of his legal advisers and the consequences of litigation.

 

Practical tips

 

15. The assessment of capacity is case-specific and sensitive to the individual circumstances of the patient. We have put together a concise list of questions which may assist you in practice:-

 

1. Who is giving instructions?
2. What is the decision or activity? How complex is it? Do I need to know more about the decision?
3. Why is the opinion sought? Is there an active dispute in the background? What is the impact and what are my obligations?
4. Are solicitors involved? Do I need further information on the applicable legal test(s) for the decision in question?
5. What is the patient's background? Do I need further information from carers, family members, etc.?
6. Who is going to be present at the assessment? Is there any risk that their presence could affect the accuracy of the assessment?
7. Have I reviewed all the relevant past medical records (including psychiatric records, if any)?
8. Have I taken into account of the relevant history (including drug history)?
9. Have I carried out a proper medical assessment of the patient's general condition? How about examination as to speech, mood, thought, perception, cognition, orientation, memory, intelligence and insight?
10. Do I have a duty to optimise the patient's condition before continuing with the assessment?
11. Have I made a detailed and focused record or report of my examination process, findings and assessment?

 

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