Mental Capacity Act 2005: A Guide for Practice

	Academic Year 2021-22

Module code and title:	LC462 Contemporary Debates	Module leader:	Salma Bi
Assignment No. and type:	CW1: Written Assignment: 2000-word essay	Assessment weighting:	100%
Submission time and date:	06-Jun-20222 before 2 pm	Target feedback time and date:	In 4 weeks

Introduction

The Mental Capacity Act 2005 and Deprivation of Liberty Safeguards are meant to ensure that people incapable of consenting to their care arrangements of care are protected if the arrangements deprive the individual of their liberty (NHS, 2022). In this essay, the law will be discussed along with its historical background of it. After that, the key principles and concepts of the law will be discussed along with the way they shape social care and health. To do this, the practices of today will be compared with the practices of the past along with relevant examples.

Main Body

The Mental capacity Act (MCA) owes its origin to the 1991 case F v West Berkshire HA (Cardiff.ac.uk, 2022). This decided if doctors were legally authorised to treat an individual who was considered incapable of consenting to the treatment plan suggested for them. In this case, the justices deliberated upon the question of sterilising a lady who suffered from a serious learning disability. The House of Lords opined that if an individual lacks the necessary mental capacity and the medical procedure is both essential and in their best interest, then the physicians could proceed with it. As per the doctrine of necessity incorporated in the common law, no one could hold doctors liable for their medical actions meant to serve a patient who is incapable of making such decisions on their own. (Cardiff.ac.uk, 2022). If the action was done in the best interest of the patient, the doctors could avail this doctrine as their defence when charged with an act of battery. Here, the consent of the patient or any recognised authority is not essential.

The body of case laws thus formulated, allowed the court to refine the judgement, thereby forming the base of sections 1-6 of the MCA 2005. The MCA was later amended by the Mental Health Act 2007 to incorporate the provisions of Deprivation of Liberty. Section 1 of the Mental Health Capacity Act identifies five statutory principles set that underpin the various legal obligations of the Act (Brown et al., 2015). The Act intends to support and enable individuals who cannot control or restrict their love. It aspires to protect individuals who cannot make definite decisions. The act also aims to maximise the decision talking ability of these people and or to participate in the decision-making process. The first principle states that it must be assumed that an individual can make decisions unless the fact is established that they cannot make decisions. It states that every adult has the right of making individual decisions unless there is ample proof of their incapacity. Some individuals may require help in making or effectively communicating their decisions, but it does not essentially mean that they are incapable of making such decisions (Brown et al., 2015). Without substantial proof, the decision-making capacity of the individual should not be determined.

The second principle states that a person must not be treated in a manner that they cannot take their own decisions unless all feasible steps to assist them in decision-making have been rendered futile. Possible steps include using a different mode of communication and providing the information in a form that is more accessible to them (Brown et al., 2015). It also includes treating a possible medical condition that might prevent them from taking decisions and providing structured programmes for improving the person’s decision-making capacity. The third principle states that an individual should not be held mentally incapable only because they make unwise decisions. Each individual has their own set of beliefs, values, attitudes and preferences. An individual should be deemed incapable of taking decisions because others think their decision is unwise. This might be applied when the family members of the individual, their friends or the doctors think that their decision is unwise.

The fourth principle states that the decision made or an act performed on behalf of the person must be done in the best interest of that person (Brown et al., 2015). The best interest of the person must be the primary basis of all the decisions and actions undertaken on the behalf of the patients because they cannot make these decisions on their own. The only exception here will be while participating in research and the refusal to get treatment, where other safeguards will be applied. It is not possible to have a single description of what the best interest of the person might be, as they depend on the individual circumstances.

The fifth principle states that before the act is performed or a decision is made; it must be regarded whether it can be done in a manner that is less restrictive to the person’s freedom of action and rights. This method is known as finding the ‘less restrictive alternative’ (Brown et al., 2015). Before someone decides on behalf of someone, it must be considered whether something else can be done which has less interference with the person’s rights basic freedom and rights.

The National Health Service was established in the UK with the primary aim of providing overarching care to English citizens throughout their entire lifespan. However, since its inception, many considerable modifications in the prevailing healthcare principles in the UK have taken place. One of the predominant modifications in this system is the ongoing debate between paternalism and patient autonomy. Medical paternalism is the practice of subordinating a patient’s wishes and demands in the pursuit of their supposed best interests. The conflict between paternalism and patient autonomy is especially prevalent in such health care scenarios where patients are incapacitated and are essentially unable to communicate their wishes (Szerletics, 2022). It is a traditional notion embedded amidst the founding principles of the National Health Service. Another medical principle that promotes paternalism was the Duty of Care. It is best described as a legal responsibility levied upon medical practitioners which required them to avoid committing or omitting any such act that could cause a foreseeable injury to the patient (Chartered Society of Physiotherapy, 2021). Thus, both paternalism and duty of care principles required medical professionals to act according to their medical opinions and summarily disregard the wishes of the patients.

The formulation of the Mental Capacity Act in 2005 led to the reversal of many of the existing medical principles and recognised the significance of patient rights, autonomy, minimal restriction, and patient best interests. This act is based on some founding principles that have revolutionised the prevalent healthcare principle in the UK. The first such principle necessitates the identification of every patient as being mentally capable unless established otherwise. It abides by the patient rights internalised by the NHS. These assure adequate respect, access to preferred health care and the provision to complain if a patient is dissatisfied with any healthcare service (Citizens Advice, 2022). The next principle of the MCA prevents delegation of the decision-making authority for any patient unless all other alternative means of communication have been exhausted. Patient communication is an essential component of the health care principles of patient autonomy (BMA, 2022). Patient-doctor communication is a cornerstone of the NHS’ patient care services. Here the medical practitioner takes all possible steps to ensure that the patients are acquainted with all relevant information about their treatment protocol. Moreover, the Deprivation of Liberty provisions, associated with the MCA, provides an additional safeguard to patient liberty and integrity.

The patient support component of the MCA is complementary to the principle of unwise decisions embodied in it. It requires a medical professional to not dismiss any patient’s decision only because they are proven mentally incapable. The definition of mental capacity or incapacity is highly subjective, relying entirely on the assessment of a group of physicians (NICE, 2018). Numerous detailed guidelines guide medical professionals regarding the identification of a patient as mentally incapable. These recent guidelines demonstrate a remarkable modification in the UK social and health care system where the patient’s mental capacity is not disregarded with ease (NICE, 2018). An inherent change in the definition of the concept of medical best interest has also been noted. The best interest principle of the MCA initiates only when a patient has been unquestionably established as being mentally incapable. Traditionally, the idea of medical best interests essentially meant physician-influenced decision-making (BMA, 2019). The MCA provisions of Advanced Decision to Refuse Treatment, Lasting Power of Attorney, and Court of Protection have expanded the definition of the concept of medical best interest. It requires individuals, to whom the decision-making authority has been delegated, to make a decision that not only complies with the doctors’ opinion but also incorporates the patient’s wishes (BMA, 2019).

The final guiding principle of the MCA sanctifies the provision of the least restrictive option that essentially instructs the decision-making authority with making such a decision that least abrogates the individual rights of the patient (Sustere and Tarpey, 2019). This provision is another essential safeguard provided to the noble ideas of patient rights in treatment and healthcare. Incorporating this provision into the Mental Capacity Act essentially necessitated the physicians to ensure that their mentally incapacitated patient was equally free as other individuals (Sustere and Tarpey, 2019). This provision is in stark opposition to the idea of the coerced institutionalisation of mentally unstable patients, legalised by the mental Health Act, developed in 1983 (NHS, 2022). Here, the modification of the government’s notions about patients’ right to equality and liberty is evident. The mental capacity act of 2005 can, therefore, be best described as a significant transformation of the English social and health care system which no longer disregarded the wishes and demands of incapacitated patients. It now provides due recognition and respect to what a patient wants and needs. The doctor’s purely medical opinion no longer suffices as the sole guiding principle that would determine the course that a patient’s treatment and care plan would take.

The Supreme Court of the UK, while deciding upon recent litigation, NHS v/s Y, decided upon a question about whether the court needs to sanction the withdrawal of life-supporting systems for patients suffering from prolonged consciousness disorders (supremecourt.uk, 2018). This litigation raised serious concerns about the revival of medical paternalism in the UK. However, the landmark judgement reached upon by Lady Black, and the other justices highlighted that legal approval of such an act is not essential as per the provisions of any existing law in the UK. This judgement upheld the noble principle of patient dignity and autonomy which is the cornerstone of the Mental Capacity Act.

The English police are found to be especially considerate and supportive toward mental health patients. In the UK, policing mentally ill individuals is considered to be an action of last resort, when all other available options have been rendered futile. A recent government report finds that policing mental health patients in the UK begins with the prompt identification of such patients and includes necessary triage facilities (HMICFRS, 2018). Any judicial activity against such individuals is seen to ensure the availability of adequate specialised help from other organisations. It represents the English administration’s dedication to ensuring the availability of all necessary facilities for the overall welfare of mental health patients in the UK.

Conclusion

The above discussion highlights that the mental capacity act is landmark legislation by the UK government. It signifies a remarkable transformation in the administration’s attitude towards health and social care in the country. This legislation embodies five remarkable principles which safeguard the integrity and dignity of the patient. Utilising this legislation, the government has provided due recognition to the patients’ rights, and their autonomy, diversified the idea of best interest redefined the concept of mental capacity. These principles are further enhanced by the Deprivation of Liberty provisions. Therefore, the health and social care scenario in the UK has undergone a conspicuous modification in the past few decades.

Reference List

BMA, (2019). Best interests decision-making for adults who lack capacity Available at: https://www.bma.org.uk/media/1850/bma-best-interests-toolkit-2019.pdf (Accessed 5 April 2022)

BMA, (2022). Communicating with patients and autonomy Available at: https://www.bma.org.uk/advice-and-support/international-doctors/life-and-work-in-the-uk/toolkit-for-doctors-new-to-the-uk/communicating-with-patients-and-autonomy (Accessed 5 April 2022)

Brown, R.A., Barber, P. and Martin, D., (2015). The Mental Capacity Act 2005: A Guide for Practice. Learning Matters.

Cardiff.ac.uk, (2022). Where can I find out more about the history of the Mental Capacity Act 2005 and the Court of Protection? Available at: https://sites.cardiff.ac.uk/wccop/resources/8-where-can-i-find-out-more-about-the-history-of-the-mental-capacity-act-2005-and-the-court-of-protection/ (Accessed 4 April 2022)

Chartered Society of Physiotherapy, (2021). Duty of Care Available at: https://www.csp.org.uk/system/files/publication_files/Duty%20of%20Care%202021.pdf (Accessed 5 April 2022)

Citizens Advice, (2022). Protecting your human rights when using health and care services Available at: https://www.citizensadvice.org.uk/health/discrimination-in-health-and-care-services/taking-action-about-discrimination-in-health-and-care-services/protecting-your-human-rights-when-using-health-and-care-services/ (Accessed 5 April 2022)

HMICFRS, (2018). Policing and Mental Health Available at: https://www.justiceinspectorates.gov.uk/hmicfrs/wp-content/uploads/policing-and-mental-health-picking-up-the-pieces.pdf (Accessed 5 April 2022)

NHS, (2022). Mental Capacity Act Available at: https://www.nhs.uk/conditions/social-care-and-support-guide/making-decisions-for-someone-else/mental-capacity-act/ (Accessed 5 April 2022)

NHS, (2022). Mental Health Act Available at: https://www.nhs.uk/conditions/social-care-and-support-guide/making-decisions-for-someone-else/mental-capacity-act/ (Accessed 5 April 2022)

NICE, (2018). Decision-making and mental capacity Available at: https://www.nice.org.uk/guidance/ng108/resources/decisionmaking-and-mental-capacity-pdf-66141544670917 (Accessed 5 April 2022)

supremecourt.uk, (2018). An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants) Available at: https://www.supremecourt.uk/cases/docs/uksc-2017-0202-judgment.pdf (Accessed 5 April 2022)

Sustere, E. and Tarpey, E., (2019). Least restrictive practice: its role in patient independence and recovery. The Journal of Forensic Psychiatry & Psychology, 30(4), pp.614-629.

Szerletics, A., (2022). Paternalism vs. autonomy? Substitute and supported decision-making in England and Hungary. Hungarian Journal of Legal Studies, 62(1), pp.75-95.