MPS Responds To Misleading Media Comments About GPs' Eligibility To Conduct Mental Health Assessments Under New Legislation, UK

Main Category: Primary Care / General Practice
Also Included In: Psychology / Psychiatry;  Mental Health
Article Date: 13 Nov 2008 - 2:00 PDT

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Following recent misleading comments in some online media that GPs who are involved in assessing the mental capacity of patients must have insurance under the Mental Capacity Regulations 2008 the Medical Protection Society (MPS) has issued advice to its members to make the position absolutely clear.

The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 ("Mental Capacity Regulations 2008") are one of a number of regulations made under Mental Capacity Act 2005 (as amended by the Mental Health Act 2007). They form part of a wider package of measures referred to as the Mental Capacity Act deprivation of liberty safeguards (MCA DOLS). The safeguards provide protection for a vulnerable group of people who are cared for in hospitals, or in care homes in circumstances that deprive them of their liberty, and who are unable to consent (but who are not detained under the Mental Health Act 1983).

The MCA DOLS, including the Mental Capacity Regulation 2008, will be implemented from 1 April 2009, not on 3 November 2008 as has been reported. The Mental Capacity Regulation 2008 applies to England only.

Dr Stephanie Bown, director of communications and policy at MPS, said: "The Mental Capacity Regulations 2008 set out who is eligible to undertake assessments of those individuals who may lose their liberty in accordance with the MCA DOLS. These Regulations will apply to the relatively small number of GPs who are engaged in mental health work. Under the Regulations doctors are only eligible to undertake mental health assessments if they are either approved under s12 of the Mental Health Act 1983 (usually psychiatrists) or have at least three years post registration experience in the diagnosis or treatment of mental disorder."

PCTs or Local Authorities will be required to ensure that practitioners who carry out this specialist mental health work have the requisite skills and experience and that they are insured in respect of any liabilities that might arise in connection with carrying out the assessment.

Dr Bown further commented: "It is entirely right that practitioners must hold professional indemnity in case they are the subject of a claim or other action following an assessment. The overwhelming majority of practitioners already hold insurance or indemnity through the scheme operated by their employing trust (via the NHSLA) or a Medical Protection Organisation."

"There is no definition of insurance in the Regulations and we fully anticipate that this requirement will encompass discretionary indemnity and NHS indemnity. The majority of doctors carrying out assessments will be employed by NHS Trusts which are members of the NHSLA scheme and, therefore, will not have a policy of insurance."

"Discretionary indemnity offered by mutual organisations has a long history of successfully protecting doctors in the UK and was encompassed in legislation approved by parliament in 2006 to make indemnity compulsory for doctors. These arrangements are new and MPS members with any questions about the MCA DOLS should contact the medicolegal advice line on 0845 605 4000."

1. The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 were introduced in Parliament in May 2008 and were approved on 9 July 2008. You can view the full regulations via this link.

2. The MCA DOLS will be implemented from 1 April 2009 (with transitional arrangements applying for the month of April).

3. Background information about MCA DOLS can be found on the Department of Health website via this link.

About MPS

The Medical Protection Society is the leading provider of comprehensive professional indemnity and expert advice to doctors, dentists and health professionals around the world. We are a mutual, not-for-profit organisation offering more than 250,000 members help with legal and ethical problems that arise from their professional practice. This includes clinical negligence claims, complaints, medical council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal-accident inquiries.

Fairness is at the heart of how we conduct our business. We actively protect and promote the interests of members and the wider profession. Equally, we believe that patients who have suffered harm from negligent treatment should receive fair compensation. We promote safer practice by running risk management and education programmes to reduce avoidable harm. MPS is not an insurance company. The benefits of membership are discretionary - this allows us the flexibility to provide help and support even in unusual circumstances.

Medical Protection Society