Understanding mental capacity
Understanding mental capacity

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3.1 The Code of Practice

A Code of Practice is, in effect, a guide as to how an act should be applied in practice. It applies to everyone but is especially useful for professional staff who have a duty to follow it.

Lord Falconer, in his foreword to the Code of Practice that accompanied the Mental Capacity Act 2005, describes the act as:

a vitally important piece of legislation, and one that will make a real difference to the lives of people who may lack mental capacity.

(Department for Constitutional Affairs, 2013, Foreword)

Lord Falconer gave the following reasons for his statement, which also apply to the legislation in Scotland and Northern Ireland:

  • It will empower people to make decisions for themselves wherever possible
  • It will protect people who lack capacity by providing a flexible framework that places individuals at the very heart of the decision-making process
  • It will ensure that they participate as much as possible in any decisions made on their behalf, and that these are made in their best interests
  • It also allows people to plan ahead for a time in the future when they might lack the capacity to make decisions for themselves

(Department for Constitutional Affairs, 2013, Foreword)

In the next activity you consider how these principles are applied in practice.

Activity 1 Mental capacity law in practice

Timing: Allow about 20 minutes

Read the Guardian article ‘Experts say doctors over-keen on labels after woman died from refusing treatment [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] ’.

Think about the following questions:

1. Consider the following principle from the Mental Capacity Act 2005 (England and Wales):

Principle 1: A presumption of capacity

Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This applies to all adults whatever their ability or disability.

In the box below, answer the following questions:

  • Do you think that the woman in this case had the right to make her own decision?
  • Do you think that she had the capacity to do so?
  • What did the judge decide? Do you agree?
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2. Now remind yourself of the following principle:

Principle 3: Unwise decisions

Every adult has the right to make decisions that others might regard as unwise or eccentric. You cannot treat somebody as lacking capacity simply because you disagree with their decision.

In the text box below, answer the following questions:

  • Do you think the woman in the article was making an unwise decision?
  • How do your thoughts about her decision affect your assessment of her capacity?
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Deciding whether a person has the capacity to make what others might think is an unwise decision is not an easy thing to do. In this case, you may have found yourself making a judgement about the woman’s lifestyle and thinking about the consequences of her decision not just for herself but for her family. But when considering decisions that may be unwise, these feelings have to be put to one side. The important issue is that the person is empowered to make the decision. In this case, the woman’s decision had serious consequences but she was nevertheless allowed to make it.

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