All on the same page

“The Court of Protection was set up under the Mental Capacity Act 2005 to give social workers and lawyers the power to take over the lives of people, most of them elderly, who are ruled not to be capable of looking after their own affairs.”

This quote, taken verbatim from a recent article on the case of LB Redbridge v G, C and F, shows the negative light that those of us who work with Court of Protection matters are presented in. The article in question was in a major national newspaper, and the writer sprinkled his text with phrases like “secretive court”, “sorry mess”, “regardless of her wishes”, “emerged from the shadows”. It doesn’t sound much like the system most of us work in, which isn’t perfect, but is hardly run by Bond villains.

One particular element of the article really caught my eye. It was claimed that the evidence of an “eminent independent psychologist” was ignored by the court.

Unsurprisingly, looking at the facts of the case presented a slightly different picture. The independent psychologist had no formal instructions to assess G’s capacity. He held an inadequate interview with G at which C was present. He had not read or assimilated documents that he had been shown, and he had minimal experience of working with the elderly.

This seemed to me a useful prompt to think about how we instruct medical professionals, what information we give them and how well we tell them what it is we need to know.

Let’s focus for a moment on the position when capacity to give instructions for a lasting power of attorney (LPA) is under discussion. If we write to a GP and simply say, “Does Mrs X have the capacity to make a lasting power of attorney?”, we aren’t going to end up with an opinion that will stand up to scrutiny.

My usual rule applies here: have a precedent letter. This can be amended and tailored to each client, but should set out clearly the issues that the medical practitioner needs to be aware of and to focus on.

My own letter contains information as follows:

• what the principles in section1 of the Mental Capacity Act 2005 are (as there’s no use in asking the assessor to have regard to the principles without setting them out);

• what the two-stage test of capacity involves;

• notes on how a client must understand, retain, weigh and communicate information as part of the decision-making process, and that only retaining information for a short period does not indicate incapacity.

I also find it useful to set out what the client must understand:

• that the LPA cannot be used until it has been registered by the Office of the Public Guardian;

• that (unlike a property and affairs LPA) the attorney under a health and welfare LPA can only make decisions the client is contemporaneously incapable of making;

• that under a property and affairs LPA, the attorney will (in general) be able to do anything with the client’s property which she/he could have done personally, unless any restrictions have been specified in the LPA;

• that the client can revoke the LPA at any time when she/he has capacity to do so, without the court having to confirm the revocation;

• that if the client lacks capacity to make a decision covered by a registered LPA, she/he could not revoke the power without confirmation by the court;

• that the authority given to the attorney is subject to the provisions of the Mental Capacity Act 2005;

• that the client should understand the reasonably foreseeable consequences of not making or making an LPA.

The letter will be a long one, but it should ensure that any resultant capacity report covers all of the issues we need it to. Equally, it should ‘flush out’ medical practitioners who don’t feel able to address the matter thoroughly.

Finally, here are my suggestions for publications where useful precedents regarding medical reports and certificates can be found: Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers by the British Medical Accosiation (BMA) and the Law Society, and Elderly Client: A Precedent Manual by Denzil Lush and Caroline Bielanska. Just make sure everyone is using the same editions – I once had an interesting argument with a consultant who was still using the 2nd edition BMA book, so found my references to the Mental Capacity Act 2005 quite confusing!

Sofia Tayton is a partner and head of care and capacity at Lodders Solicitors

She writes the regular in-practice article on care and capacity for Private Client Adviser