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Medical certification of incapacity in guardianship applications: conceptualising capacity

  • Tom C. Russ (a1), Alison Thomson (a2) and Donald Lyons (a2)
Abstract
Aims and method

To examine how capacity is recorded in practice and compare this with the statutory definition, medical reports accompanying a random 10% sample (183 applications; 360 reports) of guardianship applications granted in 2011–2012 were examined.

Results

Clinicians did not explicitly use the statutory definition of capacity in 47.5% of reports. Over half of applications (56.4%) did not explicitly link the powers sought with the patient's vulnerabilities; such a link was less common in older adults (P = 0.0175).

Clinical implications

Guardianship orders can justify deprivation of liberty. Therefore it is important that such cases involve a thorough assessment of the person and that due process is followed, including adherence to the statutory definition of capacity. Practice could be improved by altering the paperwork required of medical practitioners, in line with mental health legislation. In addition, these findings should inform current legislation reform.

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Copyright
This is an open-access article published by the Royal College of Psychiatrists and distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
Corresponding author
Correspondence to Tom Russ (tc.russ@ed.ac.uk)
Footnotes
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Declaration of interest

None.

Footnotes
References
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1 General Medical Council. Consent: Patients and Doctors Making Decisions Together. GMC, 2008: §62–3, p. 26.
2 European Court of Human Rights. Case of H.L. v. The United Kingdom (Application no. 45508/99): Judgment. ECHR, 2005.
3 Office of the Public Guardian (Scotland). Available at http://www.publicguardian-scotland.gov.uk
4 Care Quality Commission. Monitoring the Use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2011/12. CQC, 2013: pp. 67.
5 Brindle, N, Branton, T. Interface between the Mental Health Act and Mental Capacity Act: deprivation of liberty safeguards. Adv Psychiatr Treat 2010; 16: 430–7.
6 Lyons, D. Unappealing legislation? Commentary on … Interface between the Mental Health Act and Mental Capacity Act. Adv Psychiatr Treat 2010; 16: 438–9.
7 Scottish Law Commission. Discussion Paper on Adults with Incapacity (Discussion Paper No 156). TSO (The Stationery Office), 2012.
8 Scottish Law Commission. Report on Adults with Incapacity (Report No. 240). TSO (The Stationery Office), 2014.
9 Scottish Courts Service. Guardianship Order in Respect of Mona McDougall or Muldoon, Application by Paul Muldoon. Scottish Courts Service, 2005.
10 Macdonald, C. Medical Certification of Incapacity in Applications for Welfare Guardianship: An Analysis. Mental Welfare Commission, 2003.
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BJPsych Bulletin
  • ISSN: 2056-4694
  • EISSN: 2056-4708
  • URL: /core/journals/bjpsych-bulletin
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Medical certification of incapacity in guardianship applications: conceptualising capacity

  • Tom C. Russ (a1), Alison Thomson (a2) and Donald Lyons (a2)
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