A Practical Guide to the Mental Capacity Act 2005
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A Practical Guide to the Mental Capacity Act 2005
Putting the Principles of the Act Into Practice
Matthew Graham and Jakki Cowley
Foreword by Alex Ruck Keene
Jessica Kingsley Publishers
London and Philadelphia
The form for assessing mental capacity on page 77, Table 6.1 on pages 13940, and the Best-Interests Checklist on pages 1445 are reproduced with kind permission of the Kent and Medway MCA Local Implementation Network.
First published in 2015
by Jessica Kingsley Publishers
73 Collier Street
London N1 9BE, UK
and
400 Market Street, Suite 400
Philadelphia, PA 19106, USA
www.jkp.com
Copyright Matthew Graham and Jakki Cowley 2015
Foreword copyright Alex Ruck Keene 2015
Front cover image source: Shutterstock.
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Library of Congress Cataloging in Publication Data
A CIP catalog record for this book is available from the Library of Congress.
British Library Cataloguing in Publication Data
A CIP catalogue record for this book is available from the British Library.
ISBN 978 1 84905 520 8
eISBN 978 0 85700 940 1
This book is dedicated to Fay, Mum, Claire and Elena. A special dedication is given to my dear dad, Neville, who passed away in 2013 whilst I was co-writing this book he always believed in me and was a truly good man.
Matthew Graham
Much appreciation and thanks to all those that have influenced my thinking, shared their knowledge and experience and ensured my passion for advocacy, the Mental Capacity Act and all its intricacies grows each day. Thank you to my parents for supporting me in all I do and of course to my husband Mark, for everything.
Jakki Cowley
Contents
Foreword
The Mental Capacity Act 2005 (MCA 2005) is a visionary piece of legislation, which, as the House of Lords Select Committee convened to consider its implementation noted, signified a step change in the legal rights afforded to those who may lack capacity, with the potential to transform the lives of many (House of Lords Select Committee House of Lords Select Committee on the MCA 2005 Post-Legislative Scrutiny Report, March 2014). However, as the same Committee noted:
Its implementation has not met the expectations that it rightly raised. The Act has suffered from a lack of awareness and a lack of understanding. For many who are expected to comply with the Act it appears to be an optional add-on, far from being central to their working lives. The evidence presented to us concerns the health and social care sectors principally. In those sectors the prevailing cultures of paternalism (in health) and risk-aversion (in social care) have prevented the Act from becoming widely known or embedded. The empowering ethos has not been delivered. The rights conferred by the Act have not been widely realised. The duties imposed by the Act are not widely followed.
The message of the Select Committee is therefore clear: all those who are concerned in whatever context with seeking to enable those whose capacity may be in doubt to take their own decisions or, where they truly cannot, to take decisions in their best interests need all the help that they can get in internalising the principles of the Act and applying them in practice.
Jakki Cowley and Matthew Graham have set themselves an ambitious task: to attempt to demystify the MCA 2005 and to make key aspects workable in practice. Bringing their great collective expertise in the application of the MCA 2005 to bear, they have succeeded triumphantly. With clarity, wisdom and, above all, practical insight they have written a book which does far more than repeat the law (or the Codes of Practice accompanying the Act) in different words, but actually seeks to explain what the law means and what proper application looks like in practice.
Bolstered by a plethora of case studies, checklists and other practical tools, the book provides vital and much needed guidance for anyone concerned with seeking to apply the Act in a whole host of situations. It should be required reading and I hope that it will find its way onto the bookshelves of anyone who really cares about this extraordinarily important but so-often misunderstood piece of legislation.
Alex Ruck Keene
Barrister, Thirty Nine Essex Street
Honorary Research Lecturer at the University of Manchester
7 November 2014
Acknowledgments
The authors wish to thank Debbie Divine, Mr and Mrs E, Annie Ho, Lynn Hodges, Louise Jessup, Mary Macdonald, Alex Ruck Keene and Andy Wall for their insights into the Mental Capacity Act, which have helped to construct this book. The authors are also grateful for permission to reproduce documentation created by the Kent and Medway MCA Local Implementation Network. A special thanks to Stephen Jones and all at Jessica Kingsley Publishers for the opportunity to write this book and for help and encouragement along the way.
Introduction
The Mental Capacity Act 2005 (MCA) came onto the statute books for England and Wales in 2007 and is undoubtedly one of the most significant pieces of law that directly applies to adults, carers, family members, health and social care professionals and the legal profession in equal measure by discussing peoples rights, choices, best interests and how care ought to be considered, decided upon and delivered in certain circumstances.
