To mark the first Mental Capacity Action Day, at which Tor will be highlighting our Newsletter, we thought that we would ask what we still don’t know about the Act (over and above why it is still not embedded as part of everything that is done in health and social care). Some of the issues that most bother us are:

  1. How should we approach cases where P is able to explain how they would make decisions but is unable to implement them in ‘real life’ situations?
  2. Why are there so few cases where the court has considered whether s.1(3) has been satisfied?
  3. What is the relationship between lacking insight and lacking mental capacity?
  4. Is contact really person-specific or act-specific?
  5. When will the Supreme Court address the question of capacity to consent to sexual relations and, in particular, whether it is act- or person-specific?
  6. What is the real dividing line between the MCA and the inherent jurisdiction? How far does the MCA stretch in cases where a person is under pressure from others- conversely, how far does the inherent jurisdiction stretch in terms of enabling the court to make orders affecting the person concerned other than third parties? (and why are we so hung up on capacity anyway?)
  7. Is the continued attempt to maintain a division between the MCA and the MHA really appropriate? I.e. should we be following the Northern Ireland ‘fusion’ model?
  8. What is the relationship between best interests and funding decisions to meet a person’s eligible needs?
  9. How far do we go in determining what decisions P could have made if P had capacity? What is the ambit of the Court of Protection jurisdiction in the face of adverse public law decisions? Lodging complaints with public bodies? Contacting the local MP? Initiating disability discrimination or judicial review proceedings?
  10. Does the information relevant to the test for capacity to marry include the financial and testamentary implications?
  11. Why is there such resistance to adopting the MCA test in respect of wills and gifts?
  12. What exactly does the Convention on the Rights of Persons with Disabilities imply for the Act – repeal, amendment or business as usual (hint, the last is unlikely to be the correct answer)?