Determining Capacity to Make Medical Treatment Decisions: Problems Implementing the Mental Capacity Act 2005

Abstract

The Mental Capacity Act 2005 sets out a ground-breaking statutory framework to empower and protect vulnerable people who are incapable of making their own decisions. The Act incorporates empowering and safeguarding measures, but the balance between the two is precarious. The Act was scrutinized in a House of Lords Select Committee report in 2014, which concluded that, while the principles of the Act are well supported, a raft of measures is urgently needed to improve poor understanding and implementation of the empowering ethos of the Act. Some people who are capable of supported decision making are instead subjected to the decisions of others. This paper highlights an additional issue. The Act is one of a number of laws governing decisions to consent to and refuse medical treatment. As problematic as the failure to comply with the terms of the Act is the exclusion of some groups from its remit. Implementation of the Act, and compliance of our laws with human rights (and the UN Convention on the Rights of Persons with Disabilities in particular), is dependant upon a broader commitment to empowerment. This article considers how this might be achieved.