Book Review: Assessment of Mental Capacity, A Practical Guide for Doctors and Lawyers, Third Edition. The British Medical Association and The Law Society - General Editor: Penny Letts/BMA/The Law Society [1]
This book was authored by the British Medical Association and The Law Society in England and Wales. The General Editor of the book, Penny Letts, and the contributors being Alexander Ruck Keene, Fenella Morris, Dr, Julian Sheather, and Victoria Butler-Cole.
In the Foreword to this book, written by Denzil Lush, Senior Judge of the Court of Protection, its purpose is identified as setting out best practices for both professions, being legal and medical.
Importantly, in the Foreword, Denzil Lush identifies the essentials of obtaining an opinion of capacity in that the lawyer should provide the medical expert with all the information needed and give a clear explanation of the relevant legal tests that need to be addressed. Denzil Lush also identifies that it is equally important that doctors who are asked for an opinion on decisional capacity should be aware of the criteria laid down by the law in relation to that specific transaction.
I was recently at a conference where Doctor Kenneth Shulman, MD, SM, FRCPsych, FRCP(C) of Sunnybrook Research Institute, spoke of the importance when conducting present day and retrospective assessments, in receiving all of the information relevant to the circumstances of determining capacity including issues in dispute whether before the court or not. In other words, the story surrounding the dispute is just as important in the assessment of capacity, as I understand it, to determine whether or not the subject matter of the assessment understands the nature of the dispute.
Relevant to many proceedings before the court is the determination of an individual's capacity to litigate, and/or understand the nature and extent of the litigation and too, the capacity to instruct counsel in litigation proceedings.
In England and Wales, the Mental Capacity Act, 2005 came fully into force on October 1, 2007
http://www.legislation.gov.uk/ukpga/2005/9/introduction
Put simply, the authors define 'capacity' as the ability to do something.[2]
In a legal context capacity refers to a person's ability to do something, including making a decision, which may have legal consequences for that person, or for other people.[3]
The Mental Capacity Act, 2005[4] (the "MCA") provides England and Wales with a statutory framework to govern the making of decisions by and on behalf of people who may lack capacity to make specific decisions for themselves. Having a statutory tool, not only provides clarification but provides professionals with proper guidance.
The MCA defines what it means to lack capacity. It, like our Substitute Decisions Act, was intended to strike a balance between autonomy and protection.
The book provides a resource and useful tool for both medical professionals and legal professionals.
The book comprises of 17 chapters as follows:
Chapter 1: The law, practice and this book
Chapter 2: Professional and ethical issues
Chapter 3: The Mental Capacity Act 2005: capacity and best interests
Chapter 4: The legal principles: capacity and evidence
Chapter 5: Capacity to deal with financial affairs
Chapter 6: Capacity to make a Will
Chapter 7: Capacity to make a gift
Chapter 8: Capacity to litigate
Chapter 9: Capacity to enter into a contract
Chapter 10: Capacity to vote
Chapter 11: Capacity and personal relationships
Chapter 12: Capacity to consent: the criminal law and sexual offences
Chapter 13: Capacity to consent to and refuse medical treatment and procedures
Chapter 14: Capacity to consent to research and innovative treatment
Chapter 15: Capacity and the deprivation of liberty
Chapter 16: Practical guidelines for doctors
Chapter 17: Practical guidelines for lawyers
An issue that the estate litigator comes across often is determining whether or not a client has the capacity to instruct. In Chapter 2 of this book the authors speak to the issue of the capacity to instruct a solicitor: "Solicitors would be acting negligently if they acted on a client's instructions without first satisfying themselves that the client has the requisite level of capacity. Different levels of capacity are required for different transactions, for example, different considerations apply to making a Will than in conducting personal injury litigation. A solicitor must therefore assess the client's understanding in the context of the relevant legal test of capacity [...] and then consider whether the client is able to convey in general terms what they wish the solicitor to do".[5]
The authors speak to an "issue -specific" approach which has been given statutory codification in the MCA and emphasizes that an assessment of capacity must be made in relation to the specific decision in question at a particular time.
Importantly, the authors speak to the importance of considering a client's capacity to give instructions in respect of each and every transaction and at a specific time.[6]
The authors suggest that if a client's capacity is in question, it is advisable for a lawyer to seek a medical opinion. In doing so, it is necessary to explain to the doctor the relevant legal test of capacity and ask for an opinion as to how the client's medical condition may affect their ability to make the decision in question. In the case of instructing a solicitor, it is for the solicitor however to assess the level of capacity, using the medical opinion and other relevant evidence to inform the assessment.[7]
Notably, the authors also speak to the importance of solicitors considering whether or not in any circumstances they should decline to act.
Previous articles as they appear on the WEL blog site speak to this very issue, and the Law Society of Upper Canada's Rules on Professional Conduct. Please see our website for the complete article in the Estates and Trusts Pension Journal, Volume 32, No. 3: "Capacity and the Estate Lawyer: Comparing the Various Standards of Decisional Capacity" (Link)
Lawyers can take guidance from the sub-chapter entitled: "Creating the right environment for assessing capacity".[8]
The suggestions of the authors are as follows:
- "Try to minimize anxiety or stress by making the person feel at ease.
- If the cause of the incapacity can be treated, the doctor should, in so far as possible, treat it before the assessment of capacity is made.
- If the person's capacity is likely to improve, wait until it has improved. Obviously, if the assessment is urgent it may not be possible to wait.
- Be aware of any medication which could affect capacity (e.g. medication which causes drowsiness). Consider delaying the assessment until any negative effects of medication have subsided.
- If there are communication or language problems, consider enlisting the services of a speech therapist or a translator, or consult family members on the best methods of communication.
- Be aware of any cultural, ethnic or religious factors which may have a bearing on the person's way of thinking, behaviour or communication.
- Choose the best time of day for the examination. Some people are better in the morning; others are more alert in the afternoon or early evening.
- Be thorough, but keep the assessment within manageable bounds time-wise to avoid tiring or confusing the client.
- Avoid obtrusive time-checking. It should be possible, without too much discernible eye movement, to keep a check on the time.
- If more than one test of capacity has to be applied, try to do each assessment on a different day, if possible.
- Choose the best location. Usually, someone will feel more comfortable in their own home than in, say, a doctor's surgery or lawyer's office.
- Try and ensure that there are no obstruction between you and the client which could hinder the development of a relationship of equals; for example consider the height and position of the chairs.
- So far as it is within your control, make sure that the temperature in the room is comfortable and that the lighting is soft and indirect, but sufficiently bright for easy eye contact and interpretation of expression and to allow you to study any relevant documentation.
- Consider whether or not a third party should be present. In some cases the presence of a relative, friend or other person (such as an advocate or attorney) could reduce anxiety. In others, their presence might actually increase anxiety. In some cases, a third party might be a useful interpreter. In others, they could be intrusive.
- Try and eliminate any background noise or distractions, such as the television or radio, or people talking.
- Is possible, make sure that other people cannot overhear you and that others will not interrupt you either from within or outside the room: for example, by telephone.
- Be sensitive towards other disabilities, such as impaired hearing or eyesight, which could mislead you into assuming that a person lacks capacity.
- Speak at the right volume and speed. Try to use short sentences with familiar words. If necessary, accompany your speech with slightly exaggerated gestures or facial expressions and other means of non-verbal communication.
- If necessary, provide verbal or visual aids to stimulate and improve the person's memory.
- If carrying out more than one test of cognitive functioning, allow a reasonable time for general relaxed conversation between each test so as to avoid any sense of disappointment at failing a particular test.
- Don't rush - allow the client time to think things over or ask for clarification, where that is possible and appropriate.
- Some organizations (e.g. British Institute of Learning Disabilities (BILD), Mencap, Sense and Values into Action) have produced specialized material to support decision-making and decision-makers should consider whether it is appropriate to use it.
- It may be appropriate to provide access to relevant supportive technology.[9]"
The MCA is accompanied by a statutory Code of Practice [10] (Link) which provides guidance to those in the assessment of capacity.
Chapter 2 of the book provides summary points for doctors assessing capacity[11] as well as summary points for lawyers. [12]
The author's definition of capacity is as follows:
"...
capacity is therefore decision-specific and time-specific and the inability to make a decision in question because of 'an impairment of, or a disturbance in the functioning of, the mind or brain'. Loss of capacity can be partial or temporary and capacity may fluctuate. It is essential that an assessment of capacity is based on the individual's ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general. It would be wrong to say that someone lacks capacity; rather, the person may lack capacity to make a particular decision at a particular time." [13]
The MCA imposes a 2-part test of capacity as follows:
"1. Does the individual have an impairment of, or disturbance in the functioning of, their mind or brain (for example, a disability, condition or trauma that affects the way their mind or brain works)? If so, 2. Does the impairment or disturbance cause the person to be unable to make a specific decision at the time it needs to be made?" [14]
The MCA statutorily defines what it means to be unable to make a decision.
Notably, the authors address the question of who assesses capacity which is helpful since it identifies that the person who wishes to make a decision on behalf of another who lacks capacity is responsible for the assessment of a person's capacity. The authors speak to a more formal assessment being required if the decision to be taken is more serious or significant. The authors also suggest it may be advisable to refer the person to a psychiatrist or psychologist for a second opinion. In a health care setting it is the health care professional proposing a particular treatment that is responsible for assessing capacity. For legal transactions it is the solicitor's responsibility to assess their client. [15]
'Best Interests' is defined in the MCA. In Ontario, 'Best Interests' is defined in our Substitute Decisions Act (the "SDA") [16] and in the Health Care Consent Act (the "HCCA" ). [17]
The authors address capacity in the context of the role of the court, expressing the view that the final decision rests with the judge, but that evidence from a wide range of sources (including the views of family members, of care home staff, a solicitor, or social care professionals or other expert witnesses) may be of assistance in enabling a court to arrive at its conclusions. [18]
As in Ontario, the law in England and Wales is such that there is a presumption of capacity. This presumption of capacity to make a decision exists until the contrary is proved. The authors review the burden of proof, the standard of proof, the characterization of evidence and its weight. Constructive guidance is provided in Chapter 4 to solicitors instructing doctors [19] and likewise on doctors receiving instructions from solicitors. [20]
Often in the context of my practice, a document from the family doctor will be produced which may say something like "patient has capacity", or "the patient does not have capacity". The difficulty with either statement is that there is no such thing as blanket capacity or blanket incapacity. Solicitors should be cautious when asking for assessments from doctors who are not experts. Often the quality of a doctor's evidence depends on the quality of the instructions given to the doctor.
This book moves on more specifically at Chapter 5, to certain assessment criteria including the capacity to deal with financial affairs, powers of attorney, property management, and helpfully providing checklists. [21]
Chapter 6 addresses the capacity to make a Will both at common law and statutorily under the MCA. Interestingly, the common law test as outlined in the leading case on testamentary capacity in Banks and Goodfellow [22] are described to be of continuing assistance but that the test in the MCA has been held to be a modern restatement of the test in Banks and Goodfellow.[23] Accordingly, a solicitor and/or a doctor in England and Wales must now have regard to the provisions of the MCA in assessing testamentary capacity.
Chapter 7 addresses the capacity to make a gift, both at common law and statutorily under the MCA. As such, solicitors and doctors must now have regard to not only the common law, but the legislation as well.
Chapter 8 addresses the capacity to litigate, specifically those who lack capacity to litigate in civil proceedings other than in the Court of Protection. The test for the capacity to litigate is referenced in the English Court of Appeal decision of Masterman-Lister v Brutton & Co. [24] but again is redefined under the MCA for proceedings under the Court of Protection and may be adopted by courts sitting outside of the Court of Protection.
Chapter 9 addresses the capacity to enter into a contract, again referencing common law rules and the now a statutorily mandated test which is described as bringing all of the rules together under one statutory instrument.[25]
Chapter 10 addresses the capacity to vote. This interestingly is not something that I have come across in my practice, but is an interesting read.
Chapter 11 addresses capacity and personal relationships. Having written much about predatory marriages, this chapter is particularly interesting. This significantly so since our court still relies on the common law test that for instance, in the context of marriage, the capacity to marry is a simple test not requiring a high degree of intelligence. [26]
Accordingly, when the Court of Protection is considering capacity to make decisions about family or personal relationships, it must apply the test now set down in the MCA.[27] Notably, a case called Re MB (medical treatment) [1997] 2 F.L.R. 426, 437 [28] established a two-stage test of capacity to make a decision, in which in order to be deemed competent, the person must be able to both:
"(a) understand and retain the information relevant to the decision in question, especially as to the likely consequences; and
(b) use the information and weigh it in the balance as part of the process of arriving at a decision." [29]
A person deemed to be a vulnerable adult is considered in chapter 11 and is said to be within the inherent jurisdiction of the court given that there has been no clarification on the question of precisely what is needed to bring someone within the category of a vulnerable adult.
The capacity to consent to sexual relationships is also dealt with in chapter 11 and is interesting from the perspective that increasingly there are issues surrounding the consent to sexual relations in the setting of long-term care facilities and retirement homes.
Specifically, at 11.4, the capacity to consent to marriage or to enter into a civil partnership is addressed and specifically the case of Sheffield City Counsel v (1) E and (2) S [2004] EWHC 2808 (Fam). [30]
In this case, a declaration was sought to prevent the marriage of a young lady with spina bifida with an alleged mental age of 13 from marrying. In this instance, the court reviewed the authorities coming to the following conclusions:
- "Given the nature of marriage, capacity to consent to marriage will normally require the capacity to consent to sexual intercourse.
- The question of capacity arises in a somewhat different context in respect of marriages contracted under Sharia law, where the capacity to consent of the spouses is not relevant, and a marriage can therefore validly be contracted even if one or both would lack capacity under the tests set out above. However, such a marriage may not be recognized as such under the English civil law.
- As set out above, the Court of Protection is expressly precluded from consenting on behalf or an incapacitated person to marriage or sexual relations." [31]
- The question is not whether a person has capacity to marry X rather than Y. The relevant question is whether the person has capacity to marry. If the person does, it is not necessary to show that she also has the capacity to take care of her own person and property.
- The question of whether a person has capacity to marry is quite distinct from the question of whether the person is wise to marry: either wise to marry at all, or wise to marry X rather than Y, or wise to marry X.
- In relation to a proposed marriage, the only question for the court is whether the person has capacity to marry. The court has no jurisdiction to consider whether it is in the person's best interests to marry or to marry X. In relation to the question of whether the person has capacity to marry the law remains as it was set out by Singleton LJ in the Estate of Park deceased, Park v Park.
...[was the person] capable of understanding the nature of the contract into which he was entering, or was his metal condition such that he was incapable of understanding it? To ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.
- It is not enough that someone appreciates that they are taking part in a marriage ceremony or understand its words. They must understand the nature of the marriage contract. This means that they must be mentally capable of understanding the duties and responsibilities that normally attach to marriage.
There are thus, in essence, two aspects to the inquiry whether someone has capacity to marry:
- Does the person understand the nature of the marriage contract (which is, in essence, a simple one, which does not require a high degree of intelligence to comprehend)?;
- Do they understand the duties and responsibilities that normally attach to marriage?
The duties and responsibilities that normally attach to marriage where summarised in the E case as follows:
Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other's society, comfort and assistance.
In addition to the points that arise from the E Judgment, three further points should be noted:
- Given the nature of marriage, capacity to consent to marriage will normally require the capacity to consent to sexual intercourse.
- The question of capacity arises in a somewhat different context in respect of marriages contracted under Sharia law, where the capacity to consent of the spouses is not relevant, and a marriage can therefore validly be contracted even if one or both would lack capacity under the tests set out above. However, such a marriage may not be recognized as such under the English civil law.
- As set out above, the Court of Protection is expressly precluded from consenting on behalf or an incapacitated person to marriage or sexual relations." [32]
The Matrimonial Causes Act 1973 has an impact on whether or not a marriage is voidable. Interestingly, under this Act, caveats can be entered to prevent a marriage, with the Registrar General. The purpose of the caveat is to put the Registrar or Clergyman on notice and creates a requirement to investigate and enquire into capacity of both parties marry.
This caveat system appears to be a great resource in trying to prevent predatory marriages. There is no like provision in Ontario. I have written previously about the caveat provision in British Columbia: see article on WEL website: "Predatory Marriages - Legal Capacity to Marry and the Estate Plan"
The implications of marriage in England and Wales are similar to that of Ontario insofar as the status of marriage affects other matters, including the revocation of an existing Will.
Chapter 12 addresses capacity to consent: the criminal law and sexual offences.
Chapter 13 addresses the capacity to consent and refuse medical treatment and procedures, which is similar to Ontario, and seems to be statutorily mandated under the MCA and in Ontario under the HCCA and the SDA. This chapter also has an instructive section on advanced statements and decisions.[33] The authors describe the meaning of advanced statements as declarations whereby people with capacity make known their views and what should happen if they lose capacity to make decisions for themselves in a variety of circumstances. The MCA Code of Practice makes recommendations with respect to advanced decision concepts, such as life-sustaining treatment as defined by the MCA. It is made clear that a doctor is to assess whether a treatment is life sustaining in each particular situation. This chapter is particularly helpful both to solicitors and to doctors with respect to end-of-life decisions.
The subject matter of Chapters 14 and 15 have not come up in my practice as yet, but involve the capacity to consent to research and innovative treatment and the deprivation of liberty.
Chapter 16 addresses practical guidelines for doctors. I suggest that although this book is specific to England and Wales and in particular the MCA, that solicitors in Ontario could gain insightful information in circumstances where they are instructing doctors and providing some of the more general guidelines as set out in Chapter 16. In particular, the systematic approach to assessing capacity at 16.4[34] is instructive on the sort of information which ought to be provided to a medical professional assessing capacity.
The issue of retrospective assessments is addressed at Chapter 16.9 [35]
and is described by the authors as involving information based on medical notes as well as other non-medical information which may help to suggest the nature of the person's mental functioning at the time and whether or not they may have been susceptible to the exertion of undue influence or pressure. [36]
Chapter 17 is a must read for lawyers, it offers practical guidelines for lawyers and more importantly, good practices that a lawyer should consider following.
Although this resource addressed matters of limited direct utility in Ontario because we do not have a statute similar to the MCA, the book does provide significant guidance to lawyers and doctors on the approach to the determination of legal capacity in different situations. It provides effective guidelines and checklists.
See WEL website for publication checklists:
- Summary of Capacity Criteria;
- Capacity Checklist: Estate Planning Context;
- Estate Litigation Arising from Later Life Partnerships; and
- Predatory Marriages: Legal Capacity to Marry and the Estate Plan
[1] Assessment of Mental Capacity, A Practical Guide for Doctors and Lawyers, Third Edition, The British Medical Association and The Law Society, General Editor: Penny Letts/BMA/The Law Society
[2] Assessment of Mental Capacity, Third Edition, page 3, Chapter 1
[11] Chapter 2, page 19, 216
[13] Chapter 3.3, page 28
[16] Substitute Decisions Act, 1992, S.O. 1992, c.30
[17] Health Care Consent Act, S.O. 1996, C. 2, Sch, A
[22] Banks and Goodfellow, (1870) L.R. 5 Q.B. 549
[26] For further more detailed analysis, see Kimberly Whaley's article on Capacity to Marry: http://whaleyestatelitigation.com/blog/2013/06/
kimberly-presented-capacity-to-marry-predatory-marriages-
and-the-practice-tips-to-the-cba-southern-alberta-elder-law-section/
[27] Chapter 11.2, Page 106
[29] Page 106, chapter 11.2
