Baroness Finlay has posted a new blog piece about the MCA - and I have a concern about something she writes

Baroness Ilora Finlay has just posted a new blog piece about the Mental Capacity Act, at:

http://www.scie.org.uk/mca-directory/forum/blogs/20160912.asp

It is called 'Why have a National Mental Capacity Forum?' and she opens with:

'Some people ask "why bother to have a National Mental Capacity Forum?"'

Whoever is asking that question, clearly isn't aware of the current levels of misunderstanding and mis-implementation of the Act.

And I'm not sure that I exempt the Baroness from that - she includes in her new blog:

'An excellent little book "Grandpa on a skateboard" by Tim Farmer is eminently readable and explains the practicalities of assessing mental capacity and unwise decisions ...'

Well, it makes no sense to suggest that people should be 'assessing whether a decision [made by the person/patient] is 'unwise'' because, although the Act points out that unwise decisions do not necessarily indicate a lack of mental capacity, beyond that 'unwise' isn't a helpful way of thinking.

The Act says that mentally-capable people make their own decisions, irrespective of how 'unwise' any other person considers the decision to be: it goes 'if you assert a lack of mental capacity then you must establish that absence of capacity, and if you cannot establish the person lacks mental capacity, then the person makes the decision'.

Recent court rulings have explained this point - see for example, my BMJ comment at:

http://www.bmj.com/content/351/bmj.h6575/rr-0

I showed part of Mr Justice MacDonald's ruling in my piece:

'When he explains the patient's right to make her own decision(s), for example in section 97 of his ruling, Mr Justice MacDonald nowhere mentions 'best interests'. Many clinical authors, tend to write something such as 'a mentally-capable patient decides what is in his own best interests'. I find this very unhelpful - it is section 4 of the MCA, covering incapacity, which uses the concept of best interests - and I find the wording used by Mr Justice MacDonald much clearer: 'others in society may consider C's decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity ... C has capacity to decide whether or not to accept treatment [so] C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system of values and without conforming to society's expectation of what constitutes the 'normal' decision in this situation (if such a thing exists). As a capacitous individual C is, in respect of her own body and mind, sovereign.''