Abstract
Assessment of Mental Capacity is an accessible and comprehensive guide for health professionals, lawyers and others. It is indispensable for new practitioners and for those with experience of this fast-changing area of law.
The main features and principles of the Mental Capacity Act 2005 are described, as well as legal innovations such as Lasting Powers of Attorney covering health and welfare decisions. A summary of the new deprivation of liberty safeguards is provided too.
Professional and ethical issues are covered in an introductory section. A note on the relevant standard of proof is concise and illuminating. Best interests and other principles codified in the Mental Capacity Act 2005 are discussed. Readers are reminded that capacity to take a particular decision can fluctuate over time; also that someone may be able to decide on basic questions but lack the capacity to make complex decisions. As capacity is decision-specific the authors describe various legal tests under separate headings: capacity to consent to medical treatment or personal relationships; capacity to litigate, vote, manage financial affairs, make a will or gift.
This book gives a fascinating analysis of developments in the law. In relation to the capacity of vulnerable people to enter relationships there has been a shift from traditional ‘differences between the civil and criminal law’ to the current position: ‘It is now clear that the approaches to capacity under the two systems are similar, at least as regards the question of consent to sexual intercourse.’
Barristers specializing in Court of Protection work give practical advice on how to avoid pitfalls. The law tends to see medical practitioners as experts on mental capacity. A doctor asked to witness the signing of a document should assess capacity formally if it is in doubt, or decline to be involved. A GP's signature on a will implies that the doctor considered that its maker had the requisite capacity to execute it.
Assessment of Mental Capacity is portable, well-printed and contains no unnecessary jargon. Extra information is provided in footnotes, along with case citations each time a relevant point is discussed. Crucial issues yet to be determined by the courts are flagged up: ‘the authors consider that the Court of Protection is likely to adopt the “issue-specific” test set down in R v C’.
This book distils the knowledge of experienced practitioners in law, medicine and ethics. It provides current statute and case-law with an explanation of how key legal principles apply in particular situations. The text is informed throughout by an awareness of the European convention on human rights. The interface between mental health and mental capacity law is tackled. It is an invaluable reference book for anyone who has to assess decision-making capacity as part of their work. Readers will trust and enjoy this book.
Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers, 3rd edn
The British Medical Association and The Law Society, 2009
ISBN-13: 978-1-85328-778-7
Price: £39.95 (Paperback)