An incapacity to make decisions can crucially affect quality of life. Those who lack capacity are vulnerable to abuse from others, ranging from overpaternalism to exploitation, neglect and violence. Historically, those lacking capacity have not been served well by statutory services, with institutionalisation being commonplace. Community care has had its successes and failures; although care provided is often well intentioned and of good quality, abuses of power and trust continue to occur.

Legislation to protect those with incapacity has built up in a piecemeal fashion. Financial matters are currently managed by appointees under social security regulations, donees of enduring power of attorneys (EPAs) or Court of Protection appointed receivers. There is concern that abuse, particularly of the EPA system, is widespread. Healthcare and welfare decisions are not covered by statute law, although gaps are partially filled with case law examples. Those making such decisions on behalf of the incapacitated rely on a common law defence of necessity to justify their actions.

Professional bodies and voluntary organisations dealing with mental disability have lobbied the government for years to produce clear legislation and the Mental Capacity Bill followed 16 years of consultation. It has recently received Royal assent and is now known as the Mental Capacity Act 2005. It is not clear as yet when the Act will come into force and further legislative procedure is still required. The Act has been broadly welcomed although there are still some concerns from user organisations that it may not have gone far enough in terms of empowerment with decision-making, and protection from abuse.

Aims of the legislation

The overall aim of the Act is to balance protection of those lacking capacity against protection of those providing care. It introduces a framework whereby laypersons and professionals can legally make decisions on a person's behalf, subject to a statutory requirement to act in the person's best interests and being held accountable for their actions.

The Act emphasises the importance of a functional approach to capacity. Capacity is therefore not seen as a unitary phenomenon, deemed present or absent, but rather is decision-specific. People should be presumed to have capacity unless proven otherwise. There is a principle of enablement of capacity, i.e. all practicable steps should be taken to enable people to make decisions for themselves, before resorting to decision-making on their behalf. The Act aims to promote autonomy in decision-making. Those who anticipate the onset of incapacity may nominate people whom they would like to act for them when the need arises. It also includes advance directives, whereby a capable person can state which treatments they wish to refuse should they become incapacitated in the future.

There is a chapter setting out the law in relation to research involving people with incapacity, to ensure that such research is appropriate and subject to ethical review.

Finally, the Act will bring all jurisdictions relating to capacity matters under one roof, namely the new Court of Protection, headed by the Public Guardian. It is thus hoped that procedures will be streamlined and the court will be able to build up a body of expertise to promote best practice.

Assessment of capacity

The Act states that ‘a person lacks capacity… if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain’. It is therefore clear that capacity is decision-specific and also that assessment is a two-stage process: first, as to whether a disorder of mind or brain is present, and second, whether this impairs capacity. It is important that this is emphasised, as it protects the rights of individuals without a disorder of mind or brain who choose to make unwise or risky decisions.

The Act applies to carers as well as professionals. Professionals will obviously be involved in decisions such as consent to medical treatment or capacity to make a will. Carers will be expected to be able to judge a person's capacity for more everyday decisions and will be justified in acting on their behalf, providing they have a ‘reasonable belief’ that the person lacks capacity. Although professionals already receive guidance on assessment of capacity (British Medical Association & The Law Society, 2004), the government acknowledges the need to provide clear guidance for laypersons. A draft code of practice (Department of Constitutional Affairs, 2004) has been drawn up which provides information in an appropriate form for the general public.

The Act states clearly that ‘all practicable steps’ must be taken to optimise a person's capacity (e.g. by providing information in appropriate format or by communication aids), before an assumption can be made of incapacity.

The Act does not distinguish between permanent and temporary loss of capacity. However, decisions taken on behalf of someone thought to temporarily lack capacity should take account of the likelihood of capacity returning.

Making decisions

How will decisions be made in practice?

When a person makes a decision on behalf of someone with incapacity this will be covered by different sections of the new legislation. If the decision-maker is the donee of an LPA and the scope of the LPA covers the decision in question then they will be making decisions under this power. This is covered in Section 9 of the Act. Similarly, the Court of Protection may make a decision or appoint a deputy to make ongoing decisions under Section 16 of the Act.

Other decisions will be covered by Section 5 of the Act. These Section 5 Acts will be wide-ranging, from everyday decisions made by carers to major health and welfare decisions. As yet there is no guidance on the paperwork or common parlance involved. Presumably there will be forms akin to Mental Health Act 1983 section papers for medical procedures or committal to hospitals or residential facilities. It seems unlikely that carers making everyday decisions would complete such formal paperwork; however, it is clear that they will be encouraged to provide written records of their actions, in particular when financial transactions are involved.

Role of advocacy services

Earlier versions of the Capacity Bill made little reference to independent advocacy but it was clear from the responses to the Bill by both user and professional organisations that this was unsatisfactory. The Making Decisions Alliance, which represents key voluntary organisations including Mencap, Age Concern and the Alzheimer's Society, stated that ‘independent advocates are uniquely placed to ensure that the fundamental principles of the legislation, such as the paramount importance of the individual's wishes and feelings, are translated into the practice of substitute decision-making’ (Making Decisions Alliance, 2004).

People with incapacity who lack supportive family or friends are among the most vulnerable in society. An obvious example would be an elderly care home resident without relatives available to make care staff aware of their particular circumstances and preferences. As the Scrutiny Committee criticising the Bill stated, ‘small decisions often have a disproportionate effect on the morale and quality of life of those who are disadvantaged or vulnerable’ (Joint Committee on the Draft Mental Incapacity Bill, 2003). In such situations, or where there is family dispute, independent advocates can champion the needs and wants of the individual.

The government itself had already stated the importance of advocacy in the White Paper Valuing People, setting out standards for care of people with learning disabilities. This document states that ‘effective advocacy services can transform the lives of people with learning disabilities by enabling them to express their wishes and aspirations and make real choices’ (Department of Health, 2001).

The Act has now responded to these criticisms and includes a chapter on advocacy. It sets out situations where advocates must be made available for people with incapacity. If a person requires serious medical treatment or provision of accommodation in either a National Health Service hospital or care home, and there is no key person available to be consulted as to their wishes, then an independent advocate must be appointed to consider and represent their best interests. There will be clear resource implications for the provision and training of sufficient advocacy services.

Overlap with Mental Health Act legislation and the ‘Bournewood gap’

The Scrutiny Committee recommended that incapacity legislation be introduced prior to new mental health legislation so that the latter can be better tailored to work in tandem with the former. Obviously, the two areas overlap, and the Richardson Report (Department of Health, 1999) suggested early into consideration of new Mental Health Act legislation that a capacity test could form the basis of whether treatment could be enforced for mental disorder, with the caveat that additional powers may be necessary to treat those who pose a serious risk to themselves or others, which would override a capacity test. However, the Draft Mental Health Bill does not appear to be progressing in that direction and has not included a capacity test for detention. On a different tack, the remit of mental health law can be considered as different from that of incapacity. Incapacity legislation is intended to provide decision-making for those unable to do so, including medical treatment. On the other hand, mental health law imposes treatment on those who are actively refusing. There is overlap when a person lacking capacity is actively refusing treatment for a mental disorder. This has been a longstanding grey area recognised since the Bournewood case, in which a man with autism was detained in hospital for treatment without recourse to the Mental Health Act 1983 as it was judged that he lacked capacity (L. v. Bournewood Community and Mental Health NHS Trust, 1998). This high-profile case has recently been taken to the European Court of Human Rights and a judgment was released in October 2004 (HL v. UK, 2004). The European Court of Human Rights has ruled that in the Bournewood case, the patient was deprived of his liberty as there were insufficient procedural safeguards in place regarding his admission and continued detention. It is unclear at present as to how much the government is planning to amend the Capacity Act to take account of this ruling. A Department of Health consultation process (Bournewood Consultation, Department of Health, 2005) has recently been completed but has not published its response. The current state of play in the Act is that incapacitated patients actively refusing treatment for mental disorder will come under the jurisdiction of the Mental Health Act 1983, which will ‘trump’ the Capacity Act. There is, however, concern about the discrimination inherent in such an approach, whereby assenting incapacitated patients are denied the safeguards of mental health legislation with the built-in mechanisms for appeal and second opinion. There is a clear population of people with incapacity detained in hospitals or care homes whose freedom can be considered restricted. Unless some similar provision for regular review of their circumstances is built into the Capacity Act then it runs the risk of incompatibility with the Human Rights Act 1998.

How will the Capacity Act affect psychiatric practice?

Although the detail is still awaited in terms of practical administration of the various sections, the new Act provides a clear set of procedures for all doctors, including psychiatrists, to follow when they are involved in the treatment of patients with incapacity. Doctors will be able to make medical decisions for their patients using the Capacity Act rather than relying on the common law principle and case law examples. The Capacity Act is clear that the decision-maker, be it a doctor, other professional or layperson, is responsible for making an assessment of capacity. Psychiatrists frequently receive requests from other doctors, social workers and lawyers to provide their opinion on whether capacity is present or absent in a particular situation. Although we do have expertise in the management of patients with incapacity it is inappropriate and unfeasible for psychiatrists to be routinely called upon in such circumstances. However, unless the training of other professionals in assessment of capacity is improved, it is possible that the introduction of the Capacity Act and the shift in attention on to capacity assessment will be accompanied by a deluge of requests for psychiatric assessment. It is hoped that the heightened awareness of the issue of capacity brought about by legislation will improve standards in capacity assessment across the board.

Psychiatrists also need to consider the implications of the European Court of Human Rights ruling on the Bournewood case and be alert to the likelihood of further changes to the Capacity Act in response.

Conclusions

Many of the criticisms levelled by professional and user organisations have been addressed in the revised Act. It provides a valuable platform for people with disorders affecting capacity, either enabling them to make decisions themselves or to have sound decisions made on their behalf. Introduction of legislation in itself should help with the wider issue of promoting attitudes that recognise the rights of those with incapacity.

The main outstanding concerns appear to be as to whether there are sufficient safeguards written into the Act to recognise and tackle abuse. Tied in with this is the question of resources, as the safeguards rely on the provision of adequate legal aid, access to the Court of Protection, inspection and investigation of those providing informal and formal care and the training and resourcing of advocacy services.

Although the Act should not be unduly delayed, it would be disappointing if the management of ‘Bournewood gap’, i.e. compliant incapacitated patients in the light of the European Court of Human Rights decision, was not clearly addressed before the law comes into force.

Finally, the medical profession as a whole needs to recognise and fulfil its responsibility in training doctors to assess capacity. As Eastman & Peay (Reference Eastman and Peay1998) noted in a British Medical Journal editorial, capacity is finally set to become a ‘major clinicolegal issue in this country’.

Declaration of interest

None.