Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Dr Anil Christopher Chopdar (MCAB14)

Submitted by Dr Anil Chopdar in a personal capacity as a DoLS mental health assessor

Executive Summary

· DoLS mental health assessments are carried out by highly experienced and specifically trained medical professionals

· The Bill does not require that assessment of mental disorder be conducted by a similarly-qualified professional

· The Bill does not require that the assessment be done for the specific purpose of deciding whether LPS mental disorder criteria are met

· The Bill does not require that the assessment be recent

· RECOMMENDATION: The Bill should be amended to include statutory requirements that assessment of mental disorder in conjunction with an LPS application should be: 1) conducted by a registered medical professional with specific experience and training in mental health; 2) specifically to determine whether the mental disorder meets LPS criteria; 3) recent to the decision to apply for an LPS


1 Assessment by a registered medical practitioner (known as the DoLS mental health assessor) is a required part of the current DoLS application process. Qualifications to be a DoLS mental health assessor include being a Psychiatrist or GP of sufficient experience and training to be approved under Section 12 of the Mental Health Act, and having subsequently completed further specific training in DoLS.

2 DoLS mental health assessors carry out the mental disorder and eligibility assessments. In some regions, they also conduct the mental capacity assessment.

3 The powers contained in the Mental Capacity (Amendment) Bill are broad in magnitude and scope, making it proportionate and necessary that the legal safeguards be of the highest calibre. This can only be achieved with a robust and professional assessment process.

4 Mental disorder can be subtle in presentation and challenging to diagnose. In the current Bill, there is no requirement to use professionals for any of the LPS assessments. It merely states in Schedule 1 paragraph 18 sub-paragraph (2) that "an assessment must be carried out by a person who appears to the relevant person to have appropriate experience and knowledge". I believe that "appropriate experience and knowledge" in this context requires similar expertise to the mental health assessor role in DoLS i.e. a psychiatrist or GP approved under Section 12 of the Mental Health Act who has undergone further specific training relevant to LPS.

5 I understand that the government intend to use regulations or a Code of Practice to indicate that it would be best practice to use a medical professional (though it remains unclear whether the professional will need to be approved under Section 12). No Code of Practice has yet been drafted, and such documents are not subject to the same degree of scrutiny as a Bill. Such an essential feature of the assessment process should be a matter of statute.

6 Mental disorder can also evolve over time. As such, any assessment used for purposes of granting an LPS should be fresh enough to be relevant to the decision at hand. As the Bill currently stands, Schedule 1 paragraph 18 sub-paragraphs (7)(a) ,(7)(b) and (7)(c) state that "the relevant person must have regard to- (a) the length of time since the assessment was carried out; (b) the purpose for which the assessment was carried out; (c) whether there has been a change in the cared-for person’s condition that is likely to affect the determination made on the assessment". This leaves scope for the relevant person to take an inappropriately broad view, such that the mental disorder condition could be satisfied by trawling through a person’s medical record for a historic comment about mental disorder.

7 Quality and fairness of the assessment process would best be guaranteed by requiring a fresh and specific assessment by the medical professional to consider the issue at the time of the LPS request.

8 Thank you for the opportunity to provide written evidence. I hope it proves helpful to your deliberations.

January 2019

Dr Anil Chopdar

DoLS Mental Health Assessor


Prepared 15th January 2019