Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Dr Oluwatoyin Sorinmade, MRC Psych., MSc., LLM, Consultant Older Adult Psychiatrist in a personal capacity (MCAB05)

I am an older Adult Psychiatrist in the NHS and I have special interest in the Mental Capacity Act as well as in raising public and professional awareness to its principles and provisions and enabling its application to everyday life by the general public and professionals alike.

The House of Commons Public Bill Committee has requested for views to be submitted in writing during their consideration of the Mental Capacity Act (Amendment) [Lords] Bill. The content of this submission is drawn from the Mental Capacity Act.

I would like to comment specifically on the current awareness by the general public as well as professionals of the provisions and principles of the Mental Capacity Act and would like the committee to consider these suggestions.

Raising awareness of the Mental Capacity Act

• The ongoing review of the Mental Capacity Act (MCA) affords an opportunity to "re-package" how this important piece of legislation is presented to professionals and the public.

• Up to now, the MCA has been presented mainly as a "statutory framework for acting and making decisions on behalf of individuals who lack the mental capacity to make decisions for themselves".

• The MCA truly does this, but it also enshrines in law the contemporaneous decisional autonomy of capacitous individuals - s1(2), s1(3), s1(4) and also enshrines in law the right of individuals to exercise precedent autonomy– s9, s24.

• It appears that the near complete focus on the applicability of the MCA to non-capacitous individuals, almost to the exclusion of its applicability to capacitous individuals, has hindered the awareness as well as the understanding and embedding of the provisions and principles of this legislation by professionals and the general public alike.

• Perhaps an approach that promotes the legislation as one that applies to capacitous and non-capacitous individuals will facilitate its awareness by the public and professionals alike.

• The likelihood is that this approach would also enable the principles and provisions of this Act to be embedded in the everyday consciousness of the public in general and in everyday practise by professionals. This approach will also impact on raising the awareness of the public/professionals to the process for authorising arrangements which enable people who lack capacity to consent to be deprived of their liberty (for the purpose of providing them with care or treatment).

• I suggest that professional/public awareness of the MCA is raised by presenting the benefits of this legislation as stated below i.e. a legislation which individuals need to relate to on a personal level (their decisional autonomy) as well one which they need to take account of whilst relating to/carrying out their responsibilities to others.

a. Mental Capacity Act for Individuals:

a1. The Mental Capacity Act enshrines in law your decisional autonomy when you have the mental capacity to make specific decisions. It also empowers you to make certain decisions that would take effect in future i.e. at a time when you no longer have the mental capacity to make certain specific decision(s).

a2. The Mental Capacity Act enshrines in law what steps should be taken when decisions are made on your behalf i.e. in your best interests, if you lack the mental capacity to make decisions yourself.

b. Mental Capacity Act for Professionals

b1. Starting Point:

• The starting assumption must be that a person has the capacity to make the required decision except there are reasons to question the person’s capacity to make the said decision.

• The person must be supported maximally in their decision-making process

• The person has the right to make unwise decisions.

b2. Your responsibilities to others

• You can’t neglect a person who lacks the mental capacity to make a specific decision.

• Decisions made on behalf of a person who lacks the mental capacity to make a specific decision must be in their best interests – the process for making best interests decisions is prescribed by the Mental Capacity Act.

b3. The protection you have whilst providing care/services to others

• You are protected from liability if you respect the decisional autonomy of a person who has the mental capacity to make the required decision. Their decisional autonomy should also take account of other laws of the land.

• You would not incur liability for the consequences of withholding or withdrawing a treatment from a person who lacks the capacity to decide on their treatment if, at the time, you reasonably believe that an advance decision to refuse the said treatment exists and this advance decision is valid and applicable to the treatment in question.

• You would not incur liability if you follow the prescribed steps in arriving at decisions in the best interests of a person who lacks the mental capacity to make specific decision(s).

Kind regards

Dr O Sorinmade

Oluwatoyin (Deji) Sorinmade | MRC Psych., MSc., LLM| Consultant Older Adult Psychiatrist, Interpersonal Therapist

January 2019

 

Prepared 15th January 2019