Mental capacity

With the number of elderly people growing, solicitors can expect to address the issue of capacity in the elderly more often. Capacity also has to be seen in the context of Martin Masterman-Lister v Jewell & Home Counties Dairies and v Brutton & Co [2002] EWCA Civ 1889 and the Mental Capacity Act 2005 (the Act). Box 1 (below) lists some capacity issues that can arise in the elderly.

Principal issues

A psychiatrist who assesses capacity in an elderly person should consider two principal matters: diagnosis and decision-making (s 2(1) of the Act). Is the elderly person suffering, or did they suffer, from 'an impairment of, or disturbance in the functioning of, the mind or brain'? Is (was) the elderly person 'at the material time'¦. unable to make a decision for himself in relation to the matter'? The psychiatrist will also have to relate any deficiencies in the decision-making processes to the mental impairment.

In the past, assessments have not been so thorough. Records of adults known to the Court of Protection in 1999 (Suto et al (2002)) reveal that the majority of receivership assessments employed only a 'status' approach, ie, a diagnosis with or without some evidence to justify the diagnosis and/or comments related to skills/issues not clearly or specifically related to decision-making. This leaves in doubt the question of whether or not decision-making processes are so compromised that the decision is legally invalid. The best approach is a 'functional' one, where the decision-making processes are analysed and requisite skills and abilities are discussed and related to a test of capacity such as that in Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290 or Re MB (Medical Treatment) [1997] 2 FLR 426. These tests are now embodied in s 3(1) of the Act (see Box 2, overleaf) and it will be the statutory test that is now increasingly or necessarily applied.

Assessing capacity

In order to assess capacity, the psychiatrist must first be advised of the matter about which a decision is to be, or has been, made. The degree or extent of understanding is relative to the particular transaction or decision (see Re Beaney (Deceased) [1978] 1 WLR 770). There must be sufficient information as to the seriousness of the decision because, the more serious the decision, the greater the level of capacity required (see Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649). There should be information relevant to the decision, such as, in a testamentary capacity case, the nature and extent of the property and the identities of those with a potential claim on the estate.

It is important to provide the psychiatrist with relevant judgments, or extracts therefrom, and statutes. It will almost always be useful to provide a copy of Masterman-Lister. For capacity to marry Sheffield City Council and (1) E and (2) S [2004] EWHC 2808 (Family) is useful. For testamentary capacity, Banks v Goodfellow (1870) LR 5 QB 549 is still good law. If necessary, point out the party on whom the burden of proof lies and remember that some psychiatrists need to be informed of the standard of proof.

As well as assessing the elderly person's knowledge and understanding of the issue in question, the psychiatrist will also take account of their 'capacity at other times and in other contexts' (Kennedy LJ in Masterman-Lister) as this can shed light on the person's decision-making processes. The Act makes it clear that a person is not to be treated as unable to make a decision merely because he makes an unwise decision (s 1(4)), and so an 'outcome' approach to the assessment of capacity is explicitly rejected, but, as Kennedy LJ said in Masterman-Lister, outcomes 'can often cast a flood light on capacity'. So instructing solicitors should provide information as to how the elderly person manages, and has managed, other affairs in their life.

White v Fell (Rix, 1999) contains a number of examples of the brain-injured claimant's decision-making and abilities in contexts other than those in issue: how she had divorced her husband, lived on her own in sheltered accommodation, provided for her dog, arranged to visit a friend by taxi, could find her way about town, managed her benefits and took her oral contraceptive regularly. The psychiatrist will need to have considered evidence such as this before reaching his opinion. If the psychiatrist does not do so, the court will do so, as happened in Masterman-Lister.

Solicitors should also set out clearly and fully the reasons why they consider that capacity is in question and ensure that they distinguish their own observations from what is in witness statements or other documents. Where there is contradictory or inconsistent evidence, the psychiatrist will have to consider all the evidence and may give alternative opinions depending on which facts are accepted by the parties or found by the tribunal or court.

In all cases, psychiatrists should be given access to the general practice and any potentially relevant hospital records.

The approach the psychiatrist takes will vary from case to case. In most cases it makes sense to assume incapacity and conduct the examination so as to enable the elderly person to prove, if they can, that they have capacity. Rather than open the consultation with an explanation of its nature and purpose and seek explicit consent, it may be more informative to ask the elderly person what they understand to be its nature and purpose. The elderly person who explains that he has been charged with fraud, sets out the evidence, points out its weaknesses and explains why he is pleading not guilty goes a long way towards demonstrating his fitness to plead and stand his trial.

Asking questions

Care has to be taken in the way questions are put and capabilities tested. The psychiatrist does not ask a claimant in a personal injury action: 'How would you compromise your claim?' Rather, he gives a specific example and asks the claimant how they might proceed. If in doubt about the person's ability to understand compromising a claim, there is the 'car boot sale' question: 'You want £40 for your clock and you are offered only £20. What might you have to do in order to sell it?' This illustrates the importance of making sure that the information relevant to the decision in question is put in a user-friendly manner. By presenting information in a user-friendly manner, learning-disabled people judged as lacking capacity can be shown to have capacity (Gunn et al, 1999). The Act requires: 'A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.' (s 1(3))

If the elderly person is accompanied, or there is someone in attendance, it is important to try and see them on their own or, if not, to ensure that it is the elderly person who answers the questions. Of course, it will also be important to take a history from an informant, but this is a separate part of the assessment. It is useful to find out what the elderly person has been told of the nature and purpose of the consultation. This may demonstrate what information they have been able to retain.

Psychiatrists' opinions

In some cases, the psychiatrist will easily reach an opinion on capacity and it will be one that seems obvious. Others may be more difficult. This is particularly so when the person understands and retains the information, but lacks the capacity to weigh the information in the balance because, for example, as in Re MB, 'the needle or mask dominated her thinking and made her quite unable to consider anything else' or, as in the case of Ian Brady and his force-feeding, his distortions in thinking meant that he could not weigh the information balancing risks and needs (R v Collins and Ashworth Hospital Authority, ex parte Brady [2000] Lloyd's Rep Med 355-367).

Inevitably some psychiatrists' opinions will be contentious and the courts will have to decide. Solicitors who have fully and properly instructed appropriately qualified and expert psychiatrists, and psychiatrists who make a thorough analysis of the elderly person's decision-making with a functional approach, having regard to all of the relevant evidence and with regard to the common law and statutory tests and standard of proof, should be well-prepared for any judicial enquiry.

• For full details of the documents referred in this article, visit www.solicitorsjournal.com

Box 1. Capacity issues in elderly people

Make a gift

Make and execute a will

Marry

Defend a divorce

Grant a power of attorney

Consent to a sexual relationship (s. 30(1) of the Sexual Offences Act 2003)

Consent to medical treatment

Make an advance decision/directive

Plead and stand trial in a criminal court

Bring or defend an action in a civil court

Manage and administer property and affairs.

Box 2. The capacity test in section 3(1) of the Mental Capacity Act 2005

(a) understand the information relevant to the decision,

(b) retain that information,

(c) use or weigh that information as part of the process of making the decision

(d) communicate his decision (whether by talking, using sign language or any other means)

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