Dr Jones, in her comprehensive article (Psychiatric Bulletin, November 2005, 29, 423–427), provides a review of the Mental Capacity Act 2005. The Act aims to provide a statutory framework to protect vulnerable people who may not be able to make their own decisions.

To ascertain current practice of local services as regards to assessment of capacity, we examined 60 randomly selected case notes of patients with learning disability in Lincoln (15 in-patients, 45 in the community; 42 males, mean age=41 years, s.d.=13, range 18-67).

Review of case notes revealed that patients needed to make a decision regarding their medication (36 patients), admission (15 patients), placement (6 patients), financial issues (2 patients) and a sexual relationship (1 patient). We found recorded evidence for assessment of capacity in 13 case notes (22%). Clinicians had allocated more than one appointment in two-thirds of cases and used alternative and augmentative communications (sign language, Makaton and picture books) in 33 cases (55%) to facilitate patients’ decision-making.

Our study also revealed the involvement of carers in a high proportion of cases (45, 75%) and reasonable consideration for patients’ wishes (24 cases, 40%) but little evidence of involvement of advocates (3 cases, 5%) and financial safeguard (2 cases, 3.3%).

The assessment of capacity and detailed documentation required by the Mental Capacity Act 2005 will be a challenge for busy clinicians. Failure to implement safeguards for those who lack capacity will not only jeopardise the quality of care provided but will also infringe on patients’ human rights and make decision makers vulnerable to lawsuits.