Healthcare professionals are fast coming to terms with the fact that the age of paternalism, or more simply, the attitude of ‘doctor knows best’ , has been well and truly overturned. Patients are equal partners in their care planning as evidenced by a number of statutes passed in Parliament including the Mental Capacity Act 2005 and more recently the Mental Capacity (Amendment) Act 2019 ( these apply to England and Wales). This legislation stresses that all adult patients have the right to make health (treatment), financial and social care decisions for themselves, provided they have the requisite ‘capacity’ to do so. Capacity is defined quite simply, as the ‘ability to do’. This of course, assumes that sufficient information is provided to allow the individual to consent or refuse such care or treatment. However the legislation protects those who lack capacity by ensuring that decisions can be made for them in their ‘best interests’. It also provides avenues to plan ahead should capacity be compromised in the future.

The Mental Capacity Act was always meant to be an enabling piece of legislation, providing carers, health and social care professionals, a legal umbrella to support what they have been doing for years when supporting individuals who lack capacity to make such decisions for themselves. There is a presumption of capacity in all adults ( over 16 years)  but if there is doubt about an individual’s ability to decide, a ‘ functional assessment’ is made to formally confirm the presence or absence of capacity. This is done by providing relevant information as to the intervention/decision, assessing if the individual understands and retains this information , is able to weigh up it’s pros and cons, and communicate a choice.

Whilst this sounds relatively straight forward there are situations when carers and professionals, still find themselves in uncertain legal territory when making decisions on behalf of a vulnerable individual. For example in situations where the decision made is surprising or unexpected, if the individual is ambivalent about a particular choice, if their ability/capacity to decide fluctuates, or if it is unclear whether the Mental Capacity Act or in fact the Mental Health Act , in those with a mental illness, might be a more appropriate legal statute to employ. In the context of an increasing number of cases being heard in the Court of Protection, to obtain judicial rulings on these dilemmas, it was decided to update our book ‘ Mental Capacity Legislation: Principles and Practices’ primarily to highlight the intricacies of working with the MCA, at a grassroots level. Authors of this book include lawyers, practicing clinicians as well as medical academics to ensure that clinical, research and legal perspectives are covered.

The 2nd Edition describes the historical background underpinning capacity legislation, its every day practice, as well as ethical dilemmas which can confound carers and health/social care practitioners, when making best interest decisions on behalf of people lacking capacity to do so themselves. It also highlights developing case law, particularly with regards the complexity surrounding the use of the ‘Deprivation of Liberty Safeguards’ and its proposed replacement: the Liberty Protection Safeguards. The book was timed for release after the Mental Capacity Amendment Bill received Royal Assent to ensure it included an up to date description of this new piece of legislation (http://www.legislation.gov.uk/ukpga/2019/18/enacted).

We hope this book provides a useful update on the every day use of the Mental Capacity Act 2005 and the recent 2019 Amendments, to be read in conjunction with its Code of Practice.

The 2nd Edition of Mental Capacity Legislation is available in hardback, ebook and on Cambridge Core.

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