The Mental Capacity Act 2005 is partially in force as of 1 April 2007 with the majority of the remaining provisions due to come into force on 1 October 2007. The Act seeks to safeguard the protection of people’s wishes even when they no longer have the capacity to articulate those wishes. The Act could therefore have a wide-reaching effect on our professional as well as our personal lives.
We briefly examine six areas covered by the Act:
The Act codifies the common law position on capacity; the presumption is that everyone over the age of 16 has capacity.
The Act provides guidance when deciding a question of capacity. It is clear that the question must be considered every time an individual has to make a decision. It confirms the principle that an unwise decision is not in itself evidence of a lack of capacity.
The Act ensures that all decisions taken for incapacitated adults are made in their ‘best interests’. Although there is no definition of ‘best interests’, the Act provides a non-exhaustive list of factors to consider. This raises the importance for medical practitioners of carefully documenting their decision-making process, to include factors which have been discounted, in case there is any subsequent challenge to that decision.
The Act creates the concept of Lasting Powers of Attorney (LPAs) to replace the current Enduring Powers of Attorney regime. LPAs will now cover everything to do with an individual’s property and affairs to include medical decisions and authorisation of treatment, although decisions cannot be made on personal matters such as voting, marriage or adoption. All LPAs will be registered with the Court of Protection.
The Act enshrines the concept of Living Wills or Advance Directives. Aperson with full mental capacity can make an advance decision to refuse treatment, to include life-saving treatment. However, an advance decision cannot request that a life be ended. It is clear that professionals must continue to exercise their professional judgment to avoid liability.
The Act creates a criminal offence of ill-treatment or wilful neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years, or a fine, or both.
It remains to be seen how the Act will work in practice and there is likely to be a continuing struggle to maintain the balance between protection of potentially vulnerable people with maintaining their human rights and their right of selfdetermination. In due course the courts might well be asked to rule on various aspects of the Act, including the meaning of ‘capacity’ and ‘best interests’. In the meantime the advice to professionals has to be to continue to document all decisions carefully and thoroughly.