Trusts cannot force GPs to carry out mental capacity reports without payment, says BMA

Secondary care trusts cannot ‘compel’ GPs to carry out mental capacity reports on their behalf without paying them an ‘agreeable’ rate, the BMA has said.

The reports, which can take a ‘significant’ time to complete, may be required by the Court of Protection to consider ‘any question relating to someone who may lack capacity’ under section 49 of the Mental Capacity Act 2005, the BMA said.

Its latest GP Committee bulletin set out that while the court ‘may require NHS health bodies and local authorities to arrange for a report to be made’, the definition of an NHS body ‘does not include GP practices’. 

‘Therefore, practices cannot be directly ordered by the [Court of Protection] to produce a report under section 49’, it added.

However, it said trusts can request GPs to produce the report on their behalf as long as they receive payment for the work.

The GPC said: ‘Although it is possible for an NHS body (e.g. an NHS Trust), that had been ordered to arrange for a report to be made to request that someone else produce a report (under section 49(3)), e.g a GP, in doing so, the trust cannot compel a GP as an independent practitioner to do the work and if the GP agrees to do the work, he/she is entitled to be paid a rate agreeable to the GP.’

It added: ‘Producing a report is a complex process involving assessing the patient, reviewing notes, discussing with relevant professionals and compiling information. 

‘The amount of time required to review a long and complex set of medical records presented can be significant.’

Guidance published by the BMA’s medicolegal committee added that the ‘minimum time for completing a report is usually around six to eight hours, but it is not uncommon for reports to take 16 hours and at times even longer to complete.’

It said: ‘Preparation of a report will almost always involve examining the patient’s mental state, current circumstances and medical records as well as speaking to others such as carers, family members or others close to the patient.’

The guidance added that the medicolegal committee will also work with the Royal College of Psychiatrists to ‘explore the possibility’ of professionals ‘outside of the secondary care mental health services’ doing this work.

‘If it continues to be done by doctors, it is the BMA’s view that they must be properly remunerated’, it said.

In 2019, experts warned that a change in legislation could see GPs provide medical assessments for vulnerable patients with mental illness without remuneration.

The legislation, which was originally due in October 2020 but was delayed due to the Covid pandemic, was consulted on between March and July this year but the Government is yet to publish its response.

Meanwhile, the Government this month published a new ‘bureaucracy-busting concordat’ to ‘help reduce unnecessary bureaucracy and administrative burdens in general practice’.