Book Review: Assessment of Mental Capacity 5th Edition

 In Book Reviews for Private Client practitioners

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Assessment of Mental Capacity 5th EditionThis is a book review by Gill Steel of Assessment of Mental Capacity 5th Edition Law Society Publishing.

Purpose

This book is a comprehensive update of the issues surrounding mental capacity edited by Alex Ruck Keen QC of 39 Essex Street Chambers and Dr Julian Sheather, a specialist adviser in ethics and human rights at the British Medical Association. It addresses practical implications of current legal decisions, particularly for clinicians and for lawyers. It uniquely approaches the subject with a view to assisting clinicians to understand the law and lawyers to recognise the real-world complexity of clinical decision-making and the reality of everyday life.

Content

This book is divided into four parts with the first two chapters forming an introduction to the subject by reviewing the law, practice and professional ethics around the subject.

  • Chapters 3 – 5 examine the legal principles involved starting with the Mental Capacity Act 2005.
  • Chapters 6 – 17 looks at the different legal tests for capacity including to deal with financial affairs, to make a Will, to make a gift etc.
  • Chapters 18-19 covers certain practical aspects of the assessment of mental capacity both from a doctor’s perspective and from a lawyer’s perspective.
  • There are also a number of Appendices, which end with some suggested further reading.

The authors acknowledge that it will be some considerable time until the revised Code of Practice, on which there is currently a consultation, will be given statutory effect. This edition of the book considers the implications of the UN Convention on the Rights of Persons with Disabilities because although not currently drawn on by the Supreme Court to assist in their decision-making, the authors believe it has introduced new ways of thinking.

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Structure & Layout

At the start of each chapter is a list of the matters covered in that chapter. Each chapter has a numbered heading and numbered sub-headings to make it easier to find a particular topic. References are included in footnotes making it easier to read the text. There is even in paragraph 1.2 in the Introduction a section on how to use the book. It envisages that professionals will dip into the book as needed when seeking assistance with a particular person or matter, rather than it be read from cover to cover.

Tools

Probably the most practical part of the book is the section on the different legal tests for capacity which will become well-thumbed by practitioners seeking reassurance as to the right approach in a particular case. For example, the authors review the current state of the law on assessing capacity to make a Will. Reference is made to the period of uncertainty as to which was the correct test – the Banks v Goodfellow common law test or the statutory test in the Mental Capacity Act 2005 and to its conclusion that the former is preferred for now, in a number of recent cases. There is a very useful checklist at 7.10 to aid understanding of the Banks v Goodfellow test. This exemplifies the practical nature of the book.

Clarity & readability

The writing is by a number of contributors but nevertheless it offers a clear exposition of the law and provides a practical approach to issues practitioners come across in everyday practice. Fortunately, it is devoid of jargon which makes it easy to read.

Relevance to practitioners

Right from the first edition of this book, conceived by the Assessment of Mental Capacity Working Party back in 1993, this work has been an essential tool in a private client practitioner’s armoury. This current edition continues the tradition of practicality and relevance to the issues met to-day updated to include ever more aspects to an evolving topic.

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