Book review: Assessment of Mental Capacity (4th Ed)

 In Book Reviews for Private Client practitioners, Elderly/Vulnerable Client

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Assessment of Mental Capacity. A Practical Guide for Doctors and Lawyers – 4th Edition (published by the Law Society, ISBN 9781784460389)Book review

A fourth edition of this invaluable book has been much awaited since the third edition in 2009 due to case law and experience of the Mental Capacity Act 2005 (MCA) leading to a continual evolution and development of this area. The fourth edition does not disappoint and continues the fine tradition set by previous editions of providing an essential guide for both medical and legal practitioners who work with people who lack, or may lack, capacity to make decisions on their own.

An approving forward by Denzil Lush, Senior Judge of the Court of Protection, as well as the general editor being the well-known and highly accomplished barrister Alex Ruck Keene, announce the high calibre of this edition.

Purpose of the new edition

The stated aim of this fourth edition is to reflect on the lessons (both positive and negative) learnt since the MCA came into force eight years ago. The third edition which reflected the law as at Nov 2009 set out the main features of the MCA and admitted that it contained a degree of speculation as to how the MCA would affect the working practices of doctors and lawyers as the MCA was still somewhat in its infancy at that time.

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This fourth edition incorporates case law on the application of the MCA with professional experience of it from experts from a wide range of medical and legal backgrounds. Thus it removes that element of speculation on the MCA’s application and replaces it with common law developments and hardened experience of its application.

It reminds practitioners in both areas that it is not easy to give effect to the core principles of the MCA and sets out to give a thorough grounding in the legal framework combined with practical advice from experts in a variety of disciplines. It acknowledges that there is some repetition of material in the sections, but feels that this is desirable as it is intended that medical and legal professionals will not read the book from cover to cover, but will refer to the sections relevant to an individual patient/client and their particular situation.

There is the addition of a new chapter which highlights the capacity issues arising in the context of admission, assessment and treatment under the Mental Health Act 1983. This follows the 2015 edition of the Mental Health Act Code with its emphasis on the importance of the proper assessment of mental capacity in that context.

Content

The Assessment of Mental Capacity covers the civil law position in England and Wales (with key differences for the MCA’s application in Wales highlighted) of the legal rights and treatment of adults who may lack the mental capacity to make specific decisions for themselves. It does not seek to cover the legal position of children i.e. those under 16, aspects of criminal law (save for in the area of consenting to sexual relationships) or the specific issues which arise from a person’s physical incapacity.

What it does do is to bring together current topical information for medical and legal practitioners on the interpretation of the law relating to the concept of capacity to make decisions in various situations. It also gives guidance and pointers for good practice to both professions on the actual assessment process itself. The law is stated as at 1 Sept 2015.

Structure & layout

The book comprises 18 chapters divided into four parts and ten appendices.

Part one (chapters one and two) describes the purpose of the book and outlines the important professional and ethical issues for health and legal practitioners.

Part two (chapters three and four) then logically moves on to outline the key principles and concepts which underpin the MCA and examines the statutory definition and test of capacity, with ‘best interests’ being considered. There are useful sections in chapter four on what solicitors should bear in mind when asking a doctor to provide a view on mental capacity and what doctors should bear in mind when they are asked by a solicitor to consider capacity. The input of the relevant experts is very obvious here.

An outline is given of the key provisions of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Although the CRPD is not yet a direct part of the law in England and Wales, it is increasingly being referred to by the courts when looking at an individual’s rights in this area.

Part three (chapters five to sixteen) comprises by far the largest part of this book. It examines the differing legal tests of capacity which apply in various situations such as to deal with financial affairs (and the different types of powers of attorney), to make a Will and to make a gift. Situations which might be less common for a private client practitioner are also covered, such as the capacity to enter into a contract, to vote or to consent to medical treatment. The different tests are set out clearly with detailed consideration given to each and are a very useful reminder to both legal and medical practitioners.

Part four (chapters seventeen and eighteen) looks at the medical practicalities of assessing capacity, both from the perspective of a medical practitioner and of a lawyer. It is primarily aimed at health professionals who do not regularly assess mental capacity. It gives invaluable guidance to legal practitioners on directing their requests for a medical opinion appropriately and sets out the aspects involved in a medical assessment.

Tools

This book as a whole is a useful toolkit to carry around and consult as needed. Signposting to useful resources is given throughout.

There are no sample checklists aimed at legal practitioners carrying out a mental capacity assessment, which would have been most useful as a reference point. Perhaps this is due to the capacity test being slightly different in each of the scenarios and the length of the book restricted producing one for each situation.

However there is a useful sample letter to a GP requesting evidence of testamentary capacity which can be adapted for use in other situations providing the relevant test for capacity is set out. Sections from the MCA and the Code of Practice are set out in the appendices, together with an interesting overview of the Court of Protection’s jurisdiction, structure and making applications to it. The appendices also contain one of the court’s Practice Directions and the court’s COP3 Assessment of Capacity and Guidance Notes, although it would have been useful to have detailed commentary from the contributors on these, rather than just their replication and reference to aspects in the main text.

Clarity & readability

An overriding feature of this book is its succinct and easy to read style, while at the same time providing detailed and clear information on the question of assessing a person’s capacity in various situations.

Relevance to practitioners

Both legal and medical practitioners will benefit greatly from consulting not only the sections aimed at their profession, but also from reading the sections aimed at each other’s profession. If legal practitioners can understand the medical processes, not only will this assist them in reaching an informed robust view on a client’s mental capacity, but will assist them in obtaining a timely informed medical view when necessary. There can be no doubt that medical practitioners will also benefit from fully understanding matters from a legal perspective too.

As the book itself states: “It is important that both professions work within their own areas of expertise and cooperate with each other in the interests of those they seek to serve.”

The book acknowledges that its next edition is likely to look very different as the law and practice in this area will be amended by the CRPD following its eventual incorporation into English law. We eagerly await that fifth edition when the CRPD has been incorporated!

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