Assessment of Mental Capacity

• Publisher: Law Society
• Year: 2015
• ISBN:
  9781784460396
• Topic: Law
• Subtopic: Legal Profession
• Index: Law

Doctors, lawyers and other professionals often need to make an assessment of a person's mental capacity. This book helps to support these professionals by giving them a fuller understanding of the law in all situations where an assessment of capacity may be needed, clarifying the roles of professionals and providing an aid to communication both between them and with the person being assessed.Written by experts from a variety of disciplines, Assessment of Mental Capacity combines a precise statement of the law with a practical, jargon-free approach to provide guidelines on a range of issues, from capacity to form intimate personal relationships, to capacity to consent to medical treatment. The fourth edition has been updated and expanded to take account of: - recent case law and current good practice- revision of the Mental Health Act 1983 Code of Practice- the rising prominence of the United Nations Convention on the Rights of Persons with Disabilities.It provides an essential source of guidelines and information, including extracts from Mental Capacity Act 2005 and the Code of Practice, and is an indispensable tool for health and legal professionals.

PART I

Introduction

CHAPTER 1

The law, practice and this book

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1.1Mental capacity and the law

1.2How to use this book

1.3Scope of this book

1.4Further advice

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1.1MENTAL CAPACITY AND THE LAW

Capacity is the ability to do something. In a legal context it refers to a person’s ability to do something, including making a decision, which may have legal consequences for that person, or for other people. Mental capacity can be the pivotal issue in balancing the right to autonomy in decision-making and the right to protection from harm.

Doctors and lawyers have common responsibilities to ensure the protection of people who lack capacity to decide specific matters for themselves and to promote the autonomy and choices of those who can regulate their own lives. The careful assessment of whether individuals have or lack capacity to make particular decisions is essential to the protection of their rights. Doctors, lawyers and other professionals will be responsible for carrying out assessments of capacity. Effective communication, both between any professionals involved and with the person being assessed, is vital. This book sets out to aid communication, in particular between doctors and lawyers, and to clarify the legal framework within which assessment of capacity takes place.

1.1.1Background

The issue of capacity took on increased importance in England and Wales in the lead up to, and coming into effect of, the Mental Capacity Act 2005. As indicated in previous editions of this book, reform of the law relating to mental capacity was a long and protracted process, starting in 1989 with a five-year inquiry by the Law Commission which published its final report, including a draft Bill, in 1995.¹ The government undertook further consultation,² leading to a policy statement³ and eventual publication in 2003 of a second draft Mental Incapacity Bill.⁴ The draft Bill was subject to pre-legislative scrutiny by a Joint Parliamentary Select Committee which made a number of recommendations for improvements.⁵ The Joint Committee gave the following reasons why new legislation was necessary:

•the inadequacies of the (then) common law to safeguard those who lack capacity;

•the need to promote awareness and good practice in dealing with those lacking capacity;

•the government’s duty to fulfil human rights obligations towards those lacking capacity;

•the government’s commitment to promote non-discrimination in respect of people lacking capacity; and

•the need to achieve a better balance between autonomy and protection for those who are unable to make decisions.

This process of consultation and scrutiny finally resulted in the Mental Capacity Act (MCA) 2005 which came fully into effect on 1 October 2007. The Act gave statutory provision to clarify and govern the making of decisions by and on behalf of people who may lack capacity to make specific decisions for themselves. In the words of the House of Lords Select Committee convened to conduct post-legislation scrutiny of the Act in 2013–14, the Act:

was a visionary piece of legislation for its time, which marked a turning point in the statutory rights of people who may lack capacity – whether for reasons of learning disability, autism spectrum disorders, senile dementia, brain injury or temporary impairment. The Mental Capacity Act placed the individual at the heart of decision-making. Capacity was to be presumed unless proven otherwise. Decision-making was to be supported to enable the individual as far as possible to take their own decisions. Unwise decisions were not to be used as indicators of a lack of capacity – like others, those with impairments were entitled to take risks and to make poor decisions. When a person was found to lack capacity for a specific decision, the ‘best interests’ process ensured that their wishes and feelings were central to the decision being made and, importantly, provided protection from harm to vulnerable adults. The Act signified a step change in the legal rights afforded to those who may lack capacity, with the potential to transform the lives of many.⁶

The third edition of this book (published in 2010) was written at a time when MCA 2005 was still in its relative infancy, and to some extent had to include a degree of speculation as to how the changes introduced by the Act would take effect, and as to the impact of MCA 2005 on other areas of decision-making outside the scope of the Act.

We are now a decade from the enactment of MCA 2005, and eight years from its coming into force. It is, unfortunately, all too clear that while the Act, in the main, continues to be held in high regard (and indeed has had a significant impact in other jurisdictions):

its implementation has not met the expectations that it rightly raised. The Act has suffered from a lack of awareness and a lack of understanding. For many who are expected to comply with the Act it appears to be an optional add-on, far from being central to their working lives. […] In [the health and social care] sectors the prevailing cultures of paternalism (in health) and risk-aversion (in social care) have prevented the Act from becoming widely known or embedded. The empowering ethos has not been delivered. The rights conferred by the Act have not been widely realised. The duties imposed by the Act are not widely followed.⁷

In our experience, one of the most important barriers to proper implementation of the Act remains misunderstandings among professionals as to how the Act is intended to work (and not to work). As in the previous edition of the book, our primary aim remains to assist in breaking down that barrier by seeking to help doctors and lawyers reach a common understanding of the requirements of the law in all areas where an assessment of capacity may be needed. It is important that both professions work within their own areas of professional expertise and cooperate with each other in the interests of those they seek to serve.

1.1.2Changes to the previous edition

Readers will note that we have excised much of the pre-MCA case law that was discussed in the previous edition. This is primarily because there is now a significant body of practice and case law from the Court of Protection (and other courts) in which MCA 2005 has been considered and applied.⁸ We further consider that at least some of the pre-MCA case law placed an insufficient emphasis upon the empowerment of the individual whose capacity is in doubt.

The importance of both:

(a)supporting the individual to make the decision(s) in question; and

(b)(where, despite those efforts, the individual lacks that capacity) ensuring that their voice is heard in the decision-making process

has been highlighted by the rising prominence of the United Nations Convention on the Rights of Persons with Disabilities,⁹ which challenges the two fundamental building blocks of the legal framework established by MCA 2005: the very concept of mental capacity and substitute decision-making based upon best interests (see further 3.9). We anticipate, by the time of the next edition of this book, MCA 2005 may well have been amended in consequence of the Convention. We do not address it in detail, however, because the Convention has not yet been incorporated into English law.

The other substantive change to the book is the addition of a new chapter (Chapter 16) highlighting issues relating to capacity that arise in the context of admission, assessment, and treatment under the Mental Health Act (MHA) 1983. This addition has been prompted by the 2015 edition of the Mental Health Act Code of Practice (MHA Code of Practice),¹⁰ which rightly emphasises the importance of the proper assessment of mental capacity in the context of MHA 1983.

1.2HOW TO USE THIS BOOK

This book sets out to provide a useful resource and tool for the health and legal professions. It is intended to be a source of information appropriate to the assessment of mental capacity in a variety of contexts. Some repetition in the text is unavoidable and indeed desirable since it is expected that health and legal professionals will refer to the sections which are relevant to a particular patient or client rather than ...