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Review of the Mental Capacity Act 2005

  • Rowena Jones (a1)
Extract

An incapacity to make decisions can crucially affect quality of life. Those who lack capacity are vulnerable to abuse from others, ranging from overpaternalism to exploitation, neglect and violence. Historically, those lacking capacity have not been served well by statutory services, with institutionalisation being commonplace. Community care has had its successes and failures; although care provided is often well intentioned and of good quality, abuses of power and trust continue to occur.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution (CC-BY) license (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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British Medical Association & the Law Society (2004) Assessment of Mental Capacity. Guidance for Doctors and Lawyers (2nd edn). London: BMJ Books.
Department of Constitutional Affairs (2004) Mental Capacity Bill: Draft Code of Practice. London: Department of Constitutional Affairs (http://www.dca.gov.uk/menincap/mcbdraftcode.pdf).
Department of Health (1999) Report of the Expert Committee. Review of the Mental Helath Act 1983. London: Department of Health.
Department of Health (2001) Valuing People. A New Strategy for Learning Disability for the 21st Century. London:TSO (http://www.archive.official-documents.co.uk/document/cm50/5086/5086.pdf).
Department of Health (2005) Bournewood Consultation. The Approach to be Taken in Response to the Judgement of the European Court of Human Rights in the “Bournewood” Case. London: Department of Health (http://www.dh.gov.uk/assetRoot/04/10/86/41/04108641.pdf).
Eastman, N. & Peay, J. (1998) Bournewood: an indefensible gap in mental health law. BMJ, 317, 9495.
Joint Committee on The Draft Mental Incapacity Bill (2003) First Report. London: United Kingdom Parliament (http://www.publications.parliament.uk/pa/jt200203/jtselect/jtdmi/189/18902.htm).
Making Decisions Alliance (2004) Briefing for Chief Executives on the Mental Incapacity Bill and the Work of the Making Decisions Alliance (MDA) (http://www.makingdecisions.org.uk/chief_executive_briefing_feb04.pdf).
HL v. UK, European Court of Human Rights, C [2004] J 4269 .
L v. Bournewood Community and Mental Health NHS Trust [1998] 2 WLR 764 .
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BJPsych Bulletin
  • ISSN: 0955-6036
  • EISSN: 1472-1473
  • URL: /core/journals/bjpsych-bulletin
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Review of the Mental Capacity Act 2005

  • Rowena Jones (a1)
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eLetters

Assessment of capacity, a medico legal challenge for decision makers

Reza Kiani, SHO in Psychiatry
07 November 2005

Jones, in her article (2005), provides a comprehensive review of Mental Capacity Act 2005. The Act establishes a single test for assessing whether a person lacks capacity to take a particular decision at a particular time (“decision-specific” test).

It aims to provide a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions and makes it clear that a lack of capacity cannot be established merely by reference to a person’s age, appearance, or any condition or aspect of a person’s behavior which might lead others to make unjustified assumptions about capacity.

To ascertain current practice of local services as regards to assessment of capacity,we examined 60 randomly selected case notes of patients with various levelof learning disability (25% in patients; 75% in the community placements, female/male: 18/42, age range: 18-67, mean age: 41; SD: 13) in Lincoln learning disability services.

Assessment of mental competency in various specific situations revealed patients needed to make a decision in the past 12 months regarding their medication in 60% of cases, admission 25%, placement 10%, financial issues 3.3% and sexual relationship in 1.7% of cases.

We found recorded evidence of assessment of capacity in 21.7% of casenotes. Clinicians have allocated more than one appointment in two third ofthe cases and used Alternative and Augmentative Communications (Sign Language, Makaton and picture books) in 55% of cases to facilitate patients’ decision making.

Our study also indicated high percentage of involvement of the carers(75%) and reasonable consideration for patients’ wishes and preferences (40%) but small evidence of involvement of advocates (5%) and financial safeguards (3.3%).

The Act, when it comes to force in 2007, will pose a medico legal challenge for busy clinicians regarding assessment of capacity and detailed documentation, as disregard or non implementation of safeguards for those who lack capacity will not only jeopardise the quality of care provision but also infringe on patients’ human rights and make decision makers and various Trusts vulnerable to legal law suit.

Reference

Jones, R. (2005) Review of Mental Capacity Act 2005, Psychiatric Bulletin, 29, 11, 423-427
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Conflict of interest: None Declared

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