'Where to start thinking about the Mental Capacity Act' in PDF form

I wrote the attached piece ‘Where to start when thinking about the MCA’ last November. It was a piece I ‘put a fair bit of effort into writing/composing’ and it should be seen as one of my ‘periodic general updates’ of my position re MCA/EoL, and as such quite ‘wide in scope’.

It is already online in the forum in non-PDF form, but the PDF version is a much easier read because it has hyperlinks and is in general ‘better presented’. So, I’ve decided to upload the PDF version now that it is possible to do that. I'm not attaching it to my earlier piece, I've decided to upload it separately.

During the last few weeks, I have confirmed – as opposed to learning much new – during Twitter chats, that my understanding of why professionals seem to repeatedly misapply the Mental Capacity Act, is pretty-much ‘spot-on’. The PDF covers most of the ground, but in essence it seems to stem from three main issues:

1) Professionals are still wedded to the concept of ‘duty of care’ and they also have ‘safeguarding’ thrust at them: neither can be neatly fitted to the MCA’s description of patient self-determination for mentally-capable individuals [arguably it is more correct to write ‘cannot be fitted to ...’];

2) It is really difficult for working professionals such as doctors, to ‘apply the MCA as it appears if you read it ‘neutrally’’;

3) Many doctors [and as it happens many other people] ‘think the MCA itself (the Act on the statute book) is difficult to read, and full of ‘legal jargon’’. I don’t really have an answer to that – personally I much prefer to read the Act than to read its Code of Practice – but I am surprised that it is true for of many doctors.

I will throw in a comment, related to number 3. Many doctors (and also lawyers) spend a lot of time investigating the words of court rulings which involve the MCA. That is probably not the way to go – the way to go is in my view to:

First read the MCA itself, and from its words, ‘extract a coherent view of what it means’.

Second look at court rulings [which are more recent than the Act], and see if the court rulings and the words in court ruling conflict with ‘the coherent view of what the MCA means which you extracted from the MCA itself’.

There are serious ‘issues’ with the ‘look at court rulings instead of looking directly at the Act’ route.

In the Montgomery court ruling, Lady Hale pointed out one ‘problem’ with an over-emphasis on ‘the words of court rulings’ when she concluded in 117:

‘These additional observations, dealing with the specific example of pregnancy and childbirth, are merely a footnote to the comprehensive judgment of Lord Kerr and Lord Reed, with which I entirely agree. Were anyone to be able to detect a difference between us, I would instantly defer to their way of putting it. I would allow this appeal.’

And judges change their ‘approaches’ to laws – especially recent ones such as the MCA: I am pleased that recent court ruling suggest that our judges are coming to share the ‘approach to’ the MCA which always seemed to be the correct one when I read the MCA. As Mr Justice Charles wrote in his recent Briggs ruling (81: page 30):

‘As appears above I prefer the approach taken by both Pauffley J and Hayden J to the assessment of P’s past wishes and feelings, beliefs and values in the application of s. 4(6) of the MCA. Their decisions are after and apply the Aintree Hospitals case.’