5.7 Medico legal practice safeguarding, property, driving and capacity

Safeguarding adults at risk

• Section 42 of the Care Act 2014 (England) applies when an adult has care and support needs, faces abuse or neglect, and cannot protect themselves because of those needs.

• Abuse includes physical, sexual, psychological, financial, discriminatory, domestic and organisational abuse, modern slavery, neglect and self-neglect.

• The section 42 enquiry duty does not by itself authorise forced entry.

• A newly found, unexplained injury on an inpatient is a safeguarding concern, and the first step is to tell the responsible nurse and consultant at once.

• Clinicians then deal with immediate danger, record what they see and the person's own words, refer through safeguarding procedures and find out what the person wants.

• A safeguarding concern does not prove incapacity, and a capacitous adult's choices are supported.

Mental capacity

• Capacity is a legal test specific to one decision, applied at the time that decision must be made, with a presumption in favour of the person.

• A person may lack capacity for one decision and keep it for another, such as residence and finances.

• Incapacity cannot be inferred from a diagnosis, though delirium, intoxication or mania can impair capacity for a time.

• Under the Mental Capacity Act 2005, the professional concerned with the decision assesses capacity, not only psychiatrists or doctors.

Principles of the Mental Capacity Act 2005 (England and Wales)

1. Presume capacity.

2. Do not treat a person as lacking capacity until all practicable steps to help them decide have failed.

3. Do not treat an unwise decision as incapacity.

4. Act in the person's best interests when they lack capacity.

5. Choose the least restrictive effective option.

When an adult with intellectual disability refuses a non-urgent procedure, the first move is to take time and adapt the explanation.

The functional test

• An impairment or disturbance of mind or brain must make the person unable to understand, retain, or use or weigh the relevant information, or to communicate the decision.

• Failing any one of these abilities is enough to establish incapacity.

• No one can consent to marriage, civil partnership or sex, or vote, on another person's behalf.

Testamentary capacity

• Testamentary capacity is the capacity to make or change a valid will, judged by the common law test in Banks v Goodfellow (1870), not by the Mental Capacity Act.

• It is judged on the civil standard of proof, not the criminal standard.

The testator must:

1. Understand the nature and effect of making a will.

2. Understand the extent of the property being disposed of.

3. Understand who might have a claim on the estate.

4. Have no mental disorder distorting these judgements.

• A mental disorder, or an unwise or odd will, does not by itself prove incapacity.

• Under the golden rule, a medical assessment documented at the time helps when the testator is older or seriously ill.

Deprivation of liberty

• In the Bournewood case (HL v United Kingdom), an incapacitated, compliant informal patient was held to be detained in breach of Article 5, because no procedure governed the detention.

• The ruling led to the Deprivation of Liberty Safeguards.

Money, property and who may act

• Financial abuse by an attorney includes unauthorised gifts and mixing the person's funds with the attorney's own, and it is referred to safeguarding and supervisory bodies.

• An independent mental capacity advocate is mandatory for specified serious treatment and accommodation decisions, usually when there is no appropriate unpaid consultee.

Driving: duties and disclosure

• Licence holders must notify relevant conditions to the Driver and Vehicle Licensing Agency (DVLA) under section 94 of the Road Traffic Act 1988.

• A patient whose illness or psychotropic medication impairs safe driving is advised to stop driving and notify the DVLA themselves, and the advice is documented.

• The clinician discloses to the DVLA directly only if the patient will not, telling the patient beforehand where practicable and confirming it in writing afterwards.

• Sedating antidepressants, antihistamines, antipsychotics and benzodiazepines can impair driving, especially after starting or increasing a dose.

• Taking a drug as prescribed can be a defence to the specified drug limit offence, but never permits driving while impaired.

Driving: mental disorders

Group 1 covers cars and motorcycles; Group 2 covers lorries and buses.

• Relicensing also needs adherence, insight, no impairing medication effects and a favourable specialist report, so these periods are minimums, not automatic clearance.

• Dementia is the diagnosis most consistently linked with unsafe driving, because its impairment is progressive and must be notified.

• Anxiety, mood and psychotic disorders are judged instead on current mental state and stability.

Driving: seizures (Group 1)

A seizure during a doctor-advised change or reduction in anti-seizure medication must be declared and costs the car licence, because a medication-related seizure is not an exempt provoked event.