The Mental Capacity Act 2005 best interests test as applied to the elderly - is it fit for purpose?

Abstract

The Mental Capacity Act 2005 ('MCA') sets out a regime which governs the making of decisions for people who lack mental capacity. Acts must be carried out, and decisions made, for such an incapacitated person, based on what is in her best interests (section 4 MCA). In this paper, I consider the body of post-MCA case law which applies the MCA best interests test to decision-making for elderly people, in various contexts. Is the best interests test 'fit for purpose' for the vulnerable elderly? The key aims of Parliament in introducing the test seem to have been empowerment, protection and support - and alertness to undue influence - as well as a balance between the objective and subjective viewpoints. Laudable attempts have been made by some judges, applying the MCA, to pay real heed to the patient's wishes and values, and to balance physical risk with welfare and happiness. However, it is not yet clear in my view that the new regime fully achieves Parliament's aims. Indeed, these aims themselves should be expanded; the law in this area should also promote the significance and value of advanced years and should recognise Aristotle's concept of 'human flourishing' in old age. Consideration should be given to amending the MCA, adding guidance specifically for the elderly and also to introducing a Convention of Human Rights for the older person and to creating a new statutory Older Persons' Commissioner and/or a cabinet-level Minister for Ageing and Older People.