Mental capacity assessment work

GPs already approved under the Mental Health Act can now play an extra role. By Dr Jeremy Phipps.

The DOH predicts that the regulations willaffect 20,000 patients (Photograph: SPL)
The DOH predicts that the regulations willaffect 20,000 patients (Photograph: SPL)

With new regulations for mental capacity assessment coming into force in April under the Mental Health Act 2007, many primary care organisations (PCOs) are looking to recruit and train GPs as Deprivation of Liberty Safeguards (DoLS) assessors.

The new Act covers England and Wales only and updates the Mental Health Act 1983. DoLS assessors will usually already be approved under Section 12 of the 1983 Act for making emergency assessments about whether to section patients for admission.

Section 12 approval is necessary as part of a mental capacity assessment and will include establishing if the patient has a mental disorder.

Regulatory changes
This Act follows a judgment by the European Court of Human Rights ruling that a UK hospital was depriving an autistic patient of his liberty.

The new regulations will apply to those who lack the capacity to consent and will apply mainly to patients with dementia and learning disabilities in hospitals and care homes.

A duty will be placed on these institutions to identify anyone at risk from any form of deprivation of their liberty. This will be the local authority for care homes and the local PCO for hospitals.

The areas likely to be considered include patients being restrained (including the use of sedation) or prevented from leaving the institution when attempting to do so.

It will also include patients who are unable to maintain social contacts, are under constant supervision, or unable to exercise choices about their care within the home or hospital.

The DoH predicts this will affect 20,000 patients but experts feel this is an underestimate.

A framework is to be introduced to allow examination and assessment to take place prior to any possible action, but a short-term emergency order of one week may be authorised.

To become a DoLS assessor, Section 12-approved GPs are required to undergo additional training along with continual further appropriate education.

Assessors will need an enhanced criminal record check and appropriate insurance. This insurance has proved controversial, but I am reassured that my defence organisation has clearly stated that I am covered by my current GP indemnity.

If you are applying to be an assessor, I advise checking with your defence body.

Deprivation of Liberty Safeguards assessments
Likely to be considered for patients who are:

  • Restrained, including the use of sedation.
  • Unable to maintain social contacts.
  • Under constant supervision.
  • Unable to exercise choices about their care within the residential care home or hospital.
  • Prevented from leaving the institution when attempting to do so.

Assessment process
Following an application for a DoLS assessment, an initial decision is made on whether there are grounds for the process to continue and if so, two separate assessors are contacted. One will be a non-medical approved mental health professional (AMHP), formerly an approved social worker. The other will be a doctor.

This assessment will have three medical parts: age assessment (18 or over), whether the patient lacks the mental capacity to consent to being accommodated for the purpose of treatment and whether the patient is suffering from a mental health disorder.

The AMHP's role is to assess if detention is proportionate to the risk of serious harm to the patient and whether refusals by the patient are valid and take into consideration any advance directive that the patient has made.

The last component, which can be undertaken by the doctor or AMHP, is an eligibility assessment that the patient is suitable to be assessed using this legislation.

If any of these criteria are not met, the process should end. If the requirements are thought to be fulfilled, then a panel is convened to study the case and decide on a time period during which it is reasonable to deprive the patient of their liberties.

Without this assessment, the patient is deemed able to withhold consent and refuse treatment or care.

Payment for the doctor assessor is likely to be on a par with the higher fee for Mental Health Act sectioning work of usually £173.37 plus travel expenses. However, individual doctors may feel this is insufficient recompense for the time involved.

  • Dr Phipps is a GP in Lincolnshire

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