Medical Consultations and Referrals

Medical Consultations and Referrals

More Assumptions to watch out for

Just because someone is a doctor or another type of health professional doesn’t mean that they:

  • understand how and when to determine decisional capacity;
  • are the right person to give an opinion of capacity for what you need; or,
  • have the authority to give an opinion for the purpose you need.

[Again from Judith Wahl of the

Advocacy Centre for the Elderly]

Consultation vs Referral

We need to be sure we are all using the same definitions.



  • A lawyer’s conversation with a clinician, to discuss concerns about the client’s presentation.
  • Client should not be identified.
  • Consultation does not require client consent.
  • You pay for it


  • A formal referral to a clinician for evaluation.
  • Should include a written referral letter setting specific expectations
  • May or may not result in a written report.
  • Requires client consent
  • Client pays


Consult Questions

  • What should I look for?
  • What else might I ask?
  • What could I do to enhance capacity?
  • What am I overlooking?
  • What does it seem like to you?
  • Is a formal assessment indicated?

A Medical Diagnosis Can Help Answer:

  • What is causing the problem?
  • Is it temporary or permanent?
  • Will it get better or worse?
  • Could it improve with treatment?
  • What treatment could help?
  • Is there is no clinical impairment or illness?

Potential Uses of Clinical Opinion

  • Expert testimony in a subsequent proceeding.
  • Clarification of the areas of diminished capacity and of retained strengths.
  • Affirmation of the client’s capacity.
  • Justification of the lawyer’s capacity concerns to disbelieving clients and family members.
  • Expert advice on strategies to compensate for identified mental deficits.
  • Indication of the need for protective action.
  • Recommendation for follow-up testing (anticipated restoration of capacity).

Questions for Assessors

  • How long have you conducted such assessments?
  • How many other adults have you assessed?
  • What assessment approach and tools do you generally use?
  • How many visits are usually required and of what duration?
  • What is the likely cost of the assessment?

Working with the Assessor/Doctor

  • Be as clear and specific as possible (usually Doctors only provide scores on cognitive tests (MMSE) and diagnosis – specify functional capacity)
  • Help and Coach Doctor:

“What I need is assessment of ability to understand information regarding decisions about _________, and to appreciate the reasonably foreseeable consequences.”

Assessment Professionals:

Title Description
Physician Any medical doctor?
Geriatrician MD specializing in aging
Geriatric Psychiatrist or Gero-psychologist Mental Health specialists in aging
Forensic Psychiatrist or Psychologist Mental health specialists in law
Neurologist MD specialist in brain function
Neuro-psychologist Psychological specialist in cognitive functioning and testing
Geriatric Assessment Team Multidisciplinary teams expert in aging

NOTE – Expertise can be quite different. A Neurologist might have expertise in problems associated with Alzheimer’s (a cognitive disease) while a psychiatrist is likely to have more expertise in schizophrenia (a psychiatric illness).  A neuropsychologist is a good bet, as is a geriatric assessment team if available.

Checklist for Referral Letter

  • Client background: name, age, gender, residence, ethnicity, and primary language if not English; Reason client contacted lawyer; date of contact; whether new or old client.
  • Purpose of referral: assessment of capacity to do what? Nature of the legal task to be performed, broken down as much as possible into its elemental components.
  • Relevant legal standard for capacity to perform the task in question.
  • Medical and functional information known: medical history, treating physicians, current known disabilities; any mental health factors involved; lawyer’s observations of client functioning, need for accommodations.
  • Living situation; family make-up and contacts; social network.
  • Environmental/social factors that the lawyer believes may affect capacity.
  • Values and preferences of client to the extent known; client’s perception of problem.
  • Whether a phone consultation is desired prior to the written report.

Assessment and Screening Tools

The health care professional may not be familiar with an assessment tool for the particular issue you are interested in.  A useful resource when discussing possible tools with an assessor is a report  Professor Deborah O’Connor did for the Public Guardian and Trustee –  a thorough review of the various assessment and screening tools available (as of 2009).  The report is available on the PGT website here:  Incapability Assessments: A Review of Assessment and Screening Tools.

Assessment and Screening Tools

Content of Clinical Evaluation Reports

1.     Demographic Information Age, race, gender, education, etc.
2.     Legal Background and Referral Legal issue at hand, referral question
3.     History of Present Illness Medical history, current symptoms, etc.
4.     Psychosocial History Occupation, current living situation, family history of psychiatric and medical illness, etc.
5.     Informed Consent Statement of client’s consent to the evaluation
6.     Behavioral Observations Appearance, speech, mood, etc.
7.     Tests Administered List of tests given
8.     Validity Statement Opinion of extent to which test results are valid
9.     Summary of Testing Results Test scores, standard scores, performance ranges as compared to age-matched normative data
10. Impression Diagnosis; Clinical interpretation of test results; Clinical interpretation of psycho-legal capacities
11. Recommendations If appropriate, statements of recommended clinical action (e.g., treatment to help symptoms)

Best Practices for your office regarding capacity

Recommended by the ABA Commission on Law and Aging:

  • All staff trained on dementia recognition & diminished capacity
  • All staff trained in basic communication techniques, aging process, disability concerns, & avoiding stereotypes
  • Do walk-through/wheel through/ checklist to ensure elder/disability friendly office
  • Protocol – interview client alone (unless client asks for support person); stress confidentiality – use 4 C’s pamphlet
  • Develop ongoing relationship with capacity assessment specialists
  • Be familiar with legal tests of capacity for common legal transactions
  • Understand incapacity provisions of LSBC’s Code of Conduct
  • Review ABA’s “Assessment of Older Adults with Diminished Capacity: Handbook for Lawyers” and worksheet; use as framework

Screening Instruments

Should you use common screening instruments such as the MMSE?


Generally no, for the following reasons:

  • Generally not appropriate
  • Not trained
  • Limited yield – usually indicate further testing
  • Over‐reliance problems
  • False positives and false negatives
  • Practice effects
  • Lack of specificity to legal incapacity

You could use an MMSE just to screen out the most obvious cases at one extreme or the other, but we recommend having their doctor do this.