Mike's Cheeky Blog: must we look beyond the Act itself, in order to understand the MCA ?
There are two different views about what the Mental Capacity Act did. One view is that all it did was to 'bring together into one place' previous legal ideas. The other view - the one I consider to be correct - is that the MCA defined the law by describing the necessary law INSIDE THE ACT ITSELF.
WHY IS THE DIFFERENCE IMPORTANT ?
Well, if I am right, then any normal person should be able to legitimately decide 'what the MCA means' simply by reading, and deciphering, the Act itself.
If the other position is right, then it would also be necessary to understand a lot of court rulings which go back decades before the MCA became law: that is, in my opinion, 'an ask too far' of normal people. If you accept that view, then it would follow that lawyers will be able to understand the MCA better than the rest of us: I am unhappy with the logical consequence of this, which is that while family carers and welfare attorneys who are laymen are required to obey the Act, they would need to be told 'what obeying the Act means' by lawyers.
So, it is really important for me to win this one !
Here goes.
There is a court case at:
https://www.judiciary.gov.uk/wp-content/uploads/2016/12/l-briggs-v-p-briggs-others.pdf
In his ruling, Mr Justice Charles writes (on page 4):
(16) It is the application of the MCA, rather than the common law and inherent jurisdiction set out in the earlier cases that matters. However, the earlier cases remain relevant because they provide useful analyses of the relevant issues and form a central part of the background to the recommendations of the Law Commission on which the MCA was based and so to the MCA.
There is a piece by Mr Justice MacDonald at:
Mr Justice MacDonald starts his section 28 with:
28.The law that I must apply to the facts in this case in reaching my decision as to capacity is set out in the Mental Capacity Act 2005. The sections of the Act relevant to my decision provide as follows:
He then reproduces sections 1 to 3 of the MCA itself in his ruling.
Both of the judges do quote a lot of case law - but this, as Mr Justice Charles has pointed out, is in the context of
'... the earlier cases remain relevant because they provide useful analyses of the relevant issues'.
In other words, the earlier cases are not used to define the law - that role has been taken by the MCA itself - but they can be used 'to help with 'thinking''.
I THINK I 'HAVE WON THIS ONE': two recent court rulings with the judges explicitly stating that they are required to apply the MCA itself.
A NOTE ABOUT EARLIER COURT CASES
There is a problem with the idea of using earlier court rulings (from before the MCA was enacted) as an aid to thinking, if you GO BEYOND 'considering their LOGICAL ARGUMENTS'.
It becomes problematic if you are also guided by their 'ethical positions'.
Because, as Lady Hale pointed out in the Montgomery ruling:
https://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0136_Judgment.pdf
107. In the third (2010) edition of their leading work on Principles of Medical Law, Andrew Grubb, Judith Laing and Jean McHale confidently announced that a detailed analysis of the different speeches of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 was no longer necessary. A combination of the 2008 Guidance provided by the General Medical Council, the decision of the Court of Appeal in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53 and the decision of the House of Lords in Chester v Afshar [2005] 1 AC 134 meant that it could now be stated "with a reasonable degree of confidence" that the need for informed consent was firmly part of English law (para 8.70). This case has provided us with the opportunity, not only to confirm that confident statement, but also to make it clear that the same principles apply in Scotland.
108. It is now well recognised that ...
111. In this day and age, we ...
116. As NICE (2011) puts it, "Pregnant women should be offered evidence-based information and support to enable them to make informed decisions about their care and treatment" (para 1.1.1.1). Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.
Lady Hale is essentially saying 'the expectations of society - 'the ethical framework which influences judges' - changes across time': so the 'ethical stance' of a ruling from 1980, or 1955, could well be out-of-date.
FOOTNOTE
Having - I hope - established that we can simply read the MCA itself in order to consider the Act's legal instruction, the next logical issue is 'who can best consider section 4(6) of the MCA ?'. As it happens, I've done that one long since [and numerous times, to boot] - the logic says 'the close family and friends of the patient - NOT the professionals'.
Most of the professionals are less than keen on that conclusion either - but I'm sticking to 'it is logically correct !'.