Question to the Department of Health and Social Care:

To ask Her Majesty’s Government what action a family or carer can take in the event that a patient’s general practitioner refuses to undertake a mental capacity assessment for a Court of Protection application or where a solicitor has doubts about a client’s testamentary capacity.

The Mental Capacity Act Code of Practice states (paragraph 4.41) that “for a legal transaction (for example, making a will), a solicitor or legal practitioner must assess the client’s capacity to instruct them. They must assess whether the client has the capacity to satisfy any relevant legal test. In cases of doubt, they should get an opinion from a doctor or other professional expert”.

Paragraph 4.42 goes on to state “more complex decisions are likely to need more formal assessments. A professional opinion on the person’s capacity might be necessary. But the final decision about a person’s capacity must be made by the person intending to make the decision or carry out the action on behalf of the person who lacks capacity – not the professional, who is there to advise”.

If a general practitioner (GP) refuses, when asked, to provide this professional opinion it would be possible to seek the services of a different professional. The clinical commissioning group in question could sign-post accordingly.

Capacity assessments are not part of the general medical services contract and so no specific guidance has been provided in this respect. However, GPs must have regard to the above referred to Code of Practice.