Why assessing mental capacity for financial decisions is controversial in hospitalised older patients

I am regularly asked to undertake capacity assessments of hospital inpatients for decisions including granting LPA for property and finances and being an executor. I usually decline.

Why? Because mental capacity is often adversely affected when older people are hospitalised.

Elderly patients in hospital are prone to delirium which causes confusion, which in turn, can impair mental capacity. Those with dementia are particularly vulnerable to delirium. Infections, derangements of electrolytes such as sodium and calcium, constipation, medications and surgery are all causes of delirium. In a person with dementia, simply being moved from a familiar routine at home to the unfamiliar and often chaotic environment of a hospital can cause delirium.

Of course, mental capacity assessments are routinely carried out in hospital for medical decisions, e.g. consent for procedures, consideration of deprivation of liberty and for discharge planning. These are very different entities to making decisions about one’s finances or probate, however, and are generally time specific.

One of the core principles of the Mental Capacity Act 2005 states that, ‘A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success’.¹ Arguably, assessing a hospitalised patient who may well be delirious falls foul of this principle. As a doctor it would be unethical for me to undertake a capacity assessment for financial decision-making in an unwell patient in hospital. It is not improbable that a hospitalised patient could be found to be lacking capacity for a decision purely because of delirium which is generally temporary.

The only times I have undertaken mental capacity assessments for patients in hospital have been for COP3 assessments in cases where the patients were medically optimised for discharge in ‘step down’ or rehabilitation wards simply awaiting carers or home equipment, and not receiving treatment for an acute illness. In such cases I ensure that I obtain up to date clinical information, review blood results and sometimes brain scans.

Note that this post refers to patients admitted to acute hospitals for their physical health, not those at psychiatric hospitals as the latter group of patients is outside of my scope of practice.

1 Mental Capacity Act 2005 s1 (3)