The Mental Capacity Act – a balance between protection and liberty

Abstract

The stated aim of the Mental Capacity Act is to provide greater protection to those who may lose their mental capacities, particularly in terms of informed consent, patient affairs, advanced decisions and research. This article attempts to explore this new statute by way of examining the scope to which the Act departs from the previous Common Law. Three key themes are identified within this new Act, which differentiate it from Common Law: patients' best interests, which is paramount to any care or treatment; proxy consent, whereby donees can now be appointed to take charge of medical decisions; and advanced directives, where so-called living wills can be enforced provided that they are specific, written, signed and witnessed. However, upon examining the statute it appears that rather than increasing patient autonomy and self-determination, evidence suggests that power is still being held by the medical profession. Whether patients have full autonomy or not, the main issue could be how to strike an effective and workable balance between protection and liberty.

Refusal of treatment and decision-making capacity

“…This statute provides guidance on assessing capacity and acting in the 'best interests' of those who lack capacity, with the fundamental aim of balancing the rights of potentially vulnerable people with their protection. 14 The act states that if a patient is considered to lack capacity following assessment, they should still be involved in decision making as far as possible; thus enhancing their ability to exercise autonomy. 5 Under the MCA 10 there may be doubt over a patient's capacity if functioning of their mind or brain is impaired or disturbed in some way.…”

“…Equally, it could be argued that the test for capacity is not rigorous enough in order to protect vulnerable people from harming themselves. 6 Walters 14 uses the example of people suffering from anorexia to illustrate this point. Although commonly accepted that treatment should be imposed because capability to decide on treatment is compromised by an irrational belief that they are fat, people with this illness could potentially pass the test for competence.…”

“…15 The provisions of the MCA 2005 10 could be said to represent a triumph of the right to self determination over the 'doctor knows best' approach to medical decision making which had prevailed in the past. 6 However, Walters 14 argues that the requirement for a patient to understand the information given regarding the nature, purpose and effects of treatment is subjective and could be manipulated by the practitioner carrying out the assessment; thus giving them control over decision making rather than the patient. Equally, it could be argued that the test for capacity is not rigorous enough in order to protect vulnerable people from harming themselves.…”

Operational conditions

“…Thus, the Mental Capacity Act 2005 is very protective towards vulnerable adults and has a significant impact on how healthcare professionals ensure vulnerable adults' rights are protected. 54 However, as remarked by Walters, 55 the ultimate assessment of whether a person lacks capacity depends on the clinical opinion of the clinician treating the patient at the time. Thus, an indication to Major Scott that Brigadier Peel may not have the capacity to make the decision for himself is due to him being in severe pain, going into shock and also being given a strong analgesic such as Morphine, which has caused the Brigadier to become drowsy.…”