Assessing mental capacity in the United Kingdom and abroad
“As the UK House of Lords considers the effects of the Mental Capacity Act 2005, we report on how the act came into being and how the assessment of mental capacity varies around the globe”
What is the Mental Capacity Act?
The Mental Capacity Act, an act of parliament passed in 2005, gives UK doctors a legal framework for the assessment of patients’ capacity and for making decisions for those lacking capacity. Its influence on the day to day practice of doctors and medical students is enormous. Lack of capacity is the temporary or permanent inability of a patient to make a specified decision at a particular time. A patient lacks the capacity to make a decision if he or she fails to understand, retain, weigh up, or communicate a decision relating to any aspect of their health and healthcare. Anything from a necessary blood test to bowel resection could lead to a medical, ethical, or legal dilemma if a patient’s capacity is in doubt.
Why was the Mental Capacity Act introduced?
Before the act, similar practice existed but was enshrined in common law as opposed to legislation. Common law with regard to mental capacity was based on the decisions of judges in relation to several earlier cases, known in law as precedents. This created a “complex and chaotic state of law relating to decision making on behalf of those unable to make decisions for themselves” and was one of the reasons why the Law Commission started a project to clarify the common law and develop a new legal framework in 1989. The outcome culminated in the Mental Capacity Act. The bulk of the act did not introduce an entirely new system but rather clarified the old one and put it into one document. Cases on which the previous common law were built are still learnt about in medical school because their verdicts can be seen clearly to influence the Mental Capacity Act.
Dr Julian Sheather, deputy head of ethics at the BMA, explains that the old system’s problems “included the enrolment of incapacitated adults in research and concerns about the abuse of powers of attorney. Set in the wider context of an aging population and increased awareness of the rights of vulnerable adults,” he continues “they needed clarification. It was in these areas that the act proved innovative.” The Mental Capacity Act allows carefully controlled research on patients who lack capacity, and extends lasting powers of attorney arrangements from property and financial decisions to health and welfare decisions.
Furthermore, it was hoped that the Law Commission process would bring about a “more sophisticated concept of best interests, encouraging a significant move away from the narrow medical and paternalistic model” that had existed previously. Safeguards were introduced to protect against doctors simply doing what they thought was best or asking a family member for consent, creating a system that better respected patient autonomy, allowed patients the freedom to make their own decisions, and protected patients against unwanted medical intervention.
“The act was largely supported by the medical profession,” Sheather explains. “It largely codified pre-existing beliefs concerning best practice.” However, parts of it were opposed by some doctors, MPs, and parts of the media, particularly because of a fear that advanced directives might allow euthanasia by omission.  In other words, some were concerned that under the Mental Capacity Act, previous advanced directives refusing artificial hydration and nutrition would over-ride current objective clinical assessments of best interests. The Mental Capacity Act also covers best interests and outlines them as not just what the patient would have wanted but also takes into account their past and present wishes and feelings, longstanding beliefs and values, and other factors that people would have taken into account were they able to, such as the impact of the decision on those closest to them. It also highlights two exceptions to this principle: advanced decisions to reject treatment made when the individual had capacity, and the enrolment of incapacitated adults in particular kinds of research.
The effectiveness of the act is currently under scrutiny by a House of Lords select committee. It has just completed its evidence gathering phase, having heard from those affected by the act. The committee was unable to comment, pending a verdict on the act (to be delivered in February 2014), which will be eagerly anticipated by doctors and the media alike.
What about abroad?
Medicine is an international discipline. UK medical students and doctors might find themselves learning or practising abroad, just as international medical students might do in the United Kingdom. This article discusses two countries, Australia and India, with historical ties to the UK but very different levels of development. These countries are also popular destinations for UK medical students on an elective and professionals.
Practice surrounding mental capacity in Australia is similar to that of the United Kingdom. “The realm of decisional capacity as it applies to medical decisions falls within both the common law and legislation,” explains Dr Christopher Ryan, clinical senior lecturer in psychiatry at the University of Sydney. “A person is presumed to have capacity, but that presumption can be rebutted. Very like the UK, a person can be said to lack capacity if he or she either does not understand the information relevant to the decision, or cannot use and weigh that information in the balance.” Australia is divided into eight jurisdictions with different statutes, but all practise in a similar way to the United Kingdom.
The statutes promote protection of patient autonomy by defining when a patient loses capacity so that decisions cannot be made on their behalf before this point, and they take into account the patient’s best interests when decisions are made for them, although, according to Ryan, “the Mental Capacity Act has a better more structured approach than any Australian jurisdiction.” Advanced directives, Ryan explains, are an extremely complicated area of Australian law, with some jurisdictions not mentioning them in their legislation and others setting down careful procedures, although all are covered by the common law.
However, the situation in India, a less affluent and developed country than the United Kingdom and Australia, is quite different. India has become a popular destination for surgical trainees, in particular for the opportunity to gain increased “cutting time,” or time in theatres. UK trainees may start to flock to institutions such as Devi Shetty’s hospitals in search of clinical experience, but, if they take their British practices with them, they might encounter problems. “There is no capacity legislation in India,” explains Dr Soumitra Pathare, consultant psychiatrist and coordinator at the Centre for Mental Health Law and Policy in Pune, “and when the patient is thought to lack capacity, consent is taken from the nearest relative.” He continues, “There is no law making this provision for a relative to consent, but this has been the accepted customary practice for many years.” Professor Santosh K Chaturvedi, professor of psychiatry at the National Institute of Mental Health and Neurosciences, in Bangalore, explains, “it is a traditional norm and way of life in healthcare in India . . . [and] in real life, this makes things smooth and much easier for clinicians.”
Some, however, are calling for change, with similar complaints to those of the people who proposed a revision of the law in the United Kingdom. People are “aware of the autonomy of the person and that the involvement of close relatives and family raises an ethical dilemma,” says Chaturvedi. However, he cannot recall “many cases of misuse or abuse of the system,” and Pathare suggests that the pressure was “not to the extent that it was in the UK” and consequently does not think that change is currently on the legislative horizon. Chaturvedi, who has also practised in the United Kingdom, says that “having a legal framework like in [the] UK may make sense when the lifestyle and family relations become like that in [the] UK, in a few decades; but for the current life patterns, the current legal framework seems facilitatory.”
India is currently considering a new bill, the Mental Health Care Bill 2013, which has yet to be passed. The bill includes proposals about the use of advance directives for people with mental illness; however, “there is a lot of scepticism about advance directives for mental health in a country where most people do not leave a will, and do not leave advance directives for any health or other situations,” says Chaturvedi. “These might be appreciated after a couple of decades.” However, it remains to be seen whether the new bill will be passed.
Medical students from the United Kingdom who choose to work in India would benefit enormously from experiencing both the legal and the cultural differences surrounding patient capacity. In better understanding Indian practice they may weigh up the benefits and challenges of a system similar to that of the United Kingdom before the Mental Capacity Act.Trystan MacDonald, third year medical student
1University of Birmingham
Correspondence to: email@example.com
Competing interests: None declared.
Provenance and peer review: Commissioned; not externally peer reviewed.
- Glover N, Brazier M. Ethical aspects of the Law Commission Report on mental capacity. Rev Clin Geron 1996;6:365-70.
- Houses of Parliament Parliamentary Office of Science and Technology. Mental capacity and healthcare. Postnote No 381, June 2011. www.parliament.uk/briefing-papers/POST-PN-381/mental-capacity-and-healthcare-june-2011.
- Raymont V. Not in perfect mind—the complexity of clinical capacity assessment. [Editorial.] Psychiatrist 2002;26:201-4. http://pb.rcpsych.org/content/26/6/201.full.
- Mail Online. Life, death and mental capacity. 2004. www.dailymail.co.uk/news/article-329982/Life-death-mental-capacity.html.
- Catholic Medical Quarterly. Submission from the Joint Ethico-Medical Committee of The Catholic Union of Great Britain and the Guild of Catholic Doctors to The Scrutinising Committee on The Draft Mental Incapacity Bill 2003. www.cmq.org.uk/Submissions/draft_MIB_submission.html.
- Davies P. Could a passage to India be the way to get more surgical experience? BMJ 2012;345:e6637.
Cite this as: Student BMJ 2014;22:f7131