Act heralds new era in care

The way decisions will be made for mentally incapable people change radically from this week with the introduction of the Mental Capacity Act 2005 (MCA 2005).

MCA 2005—which will introduce measures such as lasting powers of attorney, living wills, and allow people to give views on their future health and medical treatment, should they not be able to do so in the future—has been broadly welcomed by lawyers. But some concerns remain.

David Hewitt, a partner at Hempsons, says the fact that anyone who intervenes in the life of an incapable person will have the duty to do so in their best interests might prove a significant protection against abuse, as will the new statutory principles and code of practice. 

“Lasting powers of attorney, however, are a bit of a concern, not least because they will make it possible for decisions about an incapable person to be taken be someone else. It might be difficult to know the perspective of a decision-maker, or even whether they have ulterior motives of their own. The change is likely to increase the possibilities for debate and even dispute between families and professional care teams.”

He says that although MCA 2005 can be used to restrict an incapable person’s liberty, it can’t be used to deprive them of liberty.
“The trick will be deciding where the line falls in a particular case. Eventually, the Act will be amended so as to permit actual deprivations of liberty, but that won’t be until next autumn. That’s when the real fun is likely to begin,” he adds.

Saimo Chahal, a partner at Bindman & Partners, says some of MCA 2005’s provisions are bound to lead to court battles.
“A valid advance decision to refuse life sustaining treatment must be obeyed by health care professionals while the Act expressly forbids euthanasia—a deliberate intervention with the express aim of ending life. There will be many instances where these two aims will clash leaving plenty of scope for arguments before the courts,” she says.

She adds that the provisions on independent mental capacity advocates are welcome in providing an independent voice for those who lack capacity, but only if proper funding is made available to implement these provisions.