The Mental Capacity Act 2005: an opportune time to reflect

More than a decade has passed since the Mental Capacity Act (‘MCA’) received royal assent. Described as a ‘visionary piece of legislation’, the MCA was a significant landmark on the legal landscape. It represented a triumph of autonomy by recognising that, as far as possible, people should play an active role in decisions about their welfare. At the core of the MCA is the fundamental principle that a person must be assumed to have decision making capacity unless it is established that he lacks it. The law therefore assumes that everyone has the ability to act and take decisions in accordance with their own interests, and affords primacy to individual priorities over paternalistic imperatives. Where a person lacks capacity – whether for reasons of learning disability, dementia, brain injury, or some other impairment of or disturbance in the functioning of the mind or brain – the MCA permits decision-makers to act on behalf of the person in accordance with his ‘best interests’. This means that, amongst other things, decision-makers must take into account the person’s past and present wishes and feelings, his beliefs and values, and any other factors that the person would be likely to consider, in order to act in a way which would likely give expression to the person’s autonomy. In this way, the MCA sought to empower people to make decisions for themselves, protect the vulnerable from the excesses of paternalism, and engineer a cultural shift in attitudes to mental impairment and incapacity.

In 2014, the House of Lords Select Committee for Health embarked on a wide-ranging review of the Act’s implementation and observed that its ‘empowering ethos’ had not been delivered:

‘Our evidence suggests that capacity is not always assumed when it should be [and]… The concept of unwise decision-making faces institutional obstruction due to prevailing cultures of risk-aversion and paternalism.’

The breadth of the MCA’s application was always going to pose formidable challenges in terms of managing compliance. The lack of enforcement mechanisms and organisations with overall responsibility for oversight of the MCA in practice was a primary criticism levied by the House of Lords Select Committee. With hindsight, it might also be said that the MCA’s decision-making framework has not quite been the panacea that was originally envisaged.

Tagged on to the MCA through the Mental Health Act 2007, Parliament introduced the Deprivation of Liberty Safeguards (‘DOLS’), a new legal framework designed to close the so-called ‘Bournewood’ gap. DOLS have proved to be a controversial innovation, indeed, it is perhaps in this respect that the MCA’s recent legacy has been most problematic. The mechanics of the DOLS are labyrinthine and they have a complex relationship with the Mental Health Act 1983. Since the Supreme Court’s decision in Cheshire West and Cheshire Council v P, there has been an explosion in number of applications for DOLS ‘standard authorisations’ in England, adding further strain to an already-creaking system. Since they first came into effect in 2009, calls to reform the DOLS have grown in volume. In March 2017, the Law Commission will publish a final report on a recent consultation on the law of mental capacity and deprivation of liberty, with recommendations for a new framework of safeguards, which may redraw the boundary between the MCA and mental health law in England.

In light of the above developments, it occurred to the authors that the recent tenth anniversary of the introduction of the MCA was an opportune moment to reflect on the 2005 Act’s record so far and to evaluate its implications for the future. To what extent has the MCA changed medical practice in England and Wales since its introduction? How effectively has it been implemented? To what extent has the MCA’s unashamed emphasis on autonomy transformed professional culture?

Featured image credit: Brain by Jesse Orrico. CC0 Public Domain via Unsplash.