Legal briefing: The Mental Capacity Act

The majority of the Mental Capacity Act (MCA) comes into force in October 2007. In April, criminal offences covering the neglect of those without capacity come into force as well as provisions concerning independent advocacy for those people who do not have anyone to speak for them.

At a recent conference it became apparent that there is a perception among a large number of those in the health care community that the MCA is only applicable to the treatment of patients with a mental disorder. This is not correct and all health care organisations need to make sure that the correct governance arrangements are in place to give effect to patients' rights and monitor application of the Act.

Checklist of best interests

The MCA allows people able to make decisions in advance of losing their mental ability to do so, and bind those who subsequently deal with their affairs, both in relation to welfare (including medical treatment) and financial affairs, and is not limited to those who suffer from a mental disorder. In the absence of formal advance arrangements, decisions must be made that are in the person's best interests. Although the MCA does not define 'best interests', it provides a checklist that must be applied in determining the answer.

The mechanisms for giving effect to an individual's autonomy are advance decisions, which clarify the right to refuse medical treatment in advance, and lasting powers of attorney, which enable another person (a proxy decision maker) to be nominated to act on behalf of the individual when capacity is lost. There are specific requirements for both types of mechanism to be effective. The obligations that flow from the MCA fall not just on the individual health care professional but on the organisation providing care (eg, Ms B v an NHS Trust).

The consequences of ignoring proxy decision makers are analogous to ignoring the parents of children and lead to human rights claims (eg, Glass v UK) and claims of unlawful treatment. However, as with children, when there is doubt over a course of action or whether a proxy decision maker is acting in a person's best interests, steps must be taken to apply to court.

Quandaries

What should organisations do? It is clearly not practicable for a formal detailed note to be made in every circumstance to check that all of the requirements of the law have been met. For example, consider the situation of a carer in the community changing a person's dressing. Would it be.necessary on every occasion to document capacity? Should the carer record be in compliance with the best interests checklist?

Certainly, what cannot be right is a form of 'legal paralysis' that could develop in carers who are too afraid to carry out their vocation of caring because of unjustified concern regarding breaching patient rights, just in the same way that it is not right for a patient's rights to be ignored.

What is required is training on the MCA, raising awareness of the Act and its implications and locally agreed policies. Those policies should set out an organisation's requirements so that health care staff and patients can refer to them for guidance and to identify clear lines of communication to enable an organisation to manage its responsibilities.

Peter Marquand is a partner in healthcare law firm.Capsticks