Impact of the Mental Capacity Act 2005
| Date | 01 March 2007 |
| DOI | https://doi.org/10.1108/13619322200700009 |
| Published date | 01 March 2007 |
| Pages | 37-40 |
| Author | Ashley Irons |
| Subject Matter | Health & social care |
ntroduction
Adraft code of practice has been published to
supplement the Mental Capacity Act which comes in
to force in April 2007. The overriding principle is that
anyone mentally competent is entitled to refuse
treatment. The means by which this is achieved is either
through Advance Decisions (living wills) or a Lasting
Power of Attorney.However, determining whether
these are valid will present clinicians and managers with
numerous dilemmas, especially when respecting an
advance decision conflicts with ‘best interests’.
The context for the legislation is that there are a
great many people whose capacity is impaired: 700,000
people in the UK suffer from dementia; 1.2 million
have a mild to moderate learning disability; 120,000
suffer from long-term effects of severe brain injury.
Section 1 of the Act has five basic principles:
■every adult is presumed to have capacity unless it
is proved otherwise
■people must be supported in making their own
decisions, beforeanyone can decide they are
unable to make a decision
■people have a right to make eccentric or unwise
decisions
■anything done on behalf of someone must be done
in their best interests
■any intervention should be the least restrictive.
Capacity
Section 2 says a person lacks capacity if ‘at the
material time he is unable to make a decision for
himself in relation to the matter because of an
impairment of, or a disturbance in the functioning
of, the mind or brain’.
I
The Mental Health Review Volume 12 Issue 1 March 2007 ©Pavilion Jour nals (Brighton) Limited 2007 37
Impact of the Mental
Ashley Irons
Mental Health Law Partner
Capsticks Solicitors
Legal Update…
As the draft code of practice states at 3.26, that
capacity has to be judged against the particular subject
and needs to be assessed each time a decision is made.
‘Impairment’ may be permanent or temporary and the
legal test is on the balance of probabilities. The code
makes it clear, at 3.59, that evidence of an adequate
assessment will be needed in the event of a challenge.
Readers will appreciate that many of the provisions
put into statutoryformcurrently exist in common law
built up through a series of cases. For this reason,
previous cases relevant to, for example, the test of
capacity will still be relevant (for example, Re C 1994
and Re MB 1997)and will continue to be quoted in
current litigation (for example, RvSS (RMO), SOAD,
DOH ex p B 2006).
Section 3 says that a person is unable to make a
decision if unable:
■to understand information relevant to the decision
■to retain that information
■to use or weigh that information as part of the
process of making the decision, or
■to communicate his decision (whether by talking,
using sign language, or any other means).
Best interests
Adults with capacity are entitled to make decisions
contraryto their own best interests. However,where
there may not be capacity, it is essential to act in a
person’s best interests and this is not limited to clinical
best interests as it includes social, moral and ethical
factors (Re SL 2000)or, as the British Medical
Association puts it, ‘if the treatment fails or ceases to
give a net benefittothe patient, then it is no longer in
their best interests’.
The code, at 4.51, says ‘they must be able to point
to objective reasons to demonstrate why they believe
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