I think we need a different way of explaining and teaching the Mental Capacity Act (MCA)

mike stone 13/01/22 Dignity Champions forum

I have attempted to suggest how the Mental Capacity Act (without its ‘detention’ provisions) could be taught to people who are not required to be ‘MCA experts’, so that most-of-the-time ‘people would get it right’.

I would not feel the need to do this, if I felt that the MCA was currently well-understood by most clinicians – unfortunately I think the MCA is still very poorly understood, even more than a decade after it became a law.

The PDF contains ‘my reasoning’, but my suggestions about how the MCA could be explained or taught are below – and if anybody wants to post their own description of how the MCA could be explained in this thread, please do that. I would also welcome posts from people who have had MCA-training, about what they found 'difficult to understand/follow' within that training.

Here is my own attempt, as it appears at the end of the PDF:

So, here is my attempt (I feel sure this could be improved upon) to describe Informed Consent and MCA Best Interests, in a concise and ‘usually correct’ way, in the context of medical treatments and in England or Wales:

If a patient seems to be able to understand the consequences of his or her decision, then the patient is probably mentally-capable. In which case, the role of a clinician is to inform the patient of the clinical consequences of accepting or refusing an offered treatment, after which the patient decides whether to accept or refuse.

If it is clear that a patient does not possess mental capacity for a particular decision, then decisions should be made in the patient’s best interests as required by the Mental Capacity Act. Best Interests always requires an attempt to be made to work out what the patient would have decided if the patient had been capacitous – a concept usually called substituted judgement. For treatments which are NOT life-sustaining, if it is understood what the patient would have decided if capacitous, then best interests can depart from ‘what the patient would have decided’ but explaining precisely how and why is ‘fuzzy’: the simplest way to think about it, is perhaps to say that a capacitous person is entitled to make ‘a bad decision’ but a best-interests decision-maker is expected to make ‘a good decision’ which gives the incapacitous person the ‘best’, when seen from the incapacitous person’s ‘future perspective’, future. For some situations which involve an incapacitous person and a life-sustaining treatment, best interests DOES become substituted judgement: if it is understood with sufficient certainty that the patient would, if capacitous, have refused a life-sustaining treatment then the treatment should be withheld or withdrawn.

If a Welfare Attorney or Court Deputy has been appointed, then that person’s role is to make best interests decisions which are within the scope of their authority, so clinicians should be providing information to help attorneys and deputies to make the best interests decisions.

If a valid and applicable Advance Decision has been made by the patient, then the decision removes the need for any best-interests decision-making to take place: indeed, best interests cannot legitimately occur if an ADRT is valid and applicable for the intervention being considered.

More pragmatically if ‘those close-to the patient’ and the clinicians involved openly and collaboratively get their heads together and all agree about what would be best for an incapacitous patient, then what they have agreed upon probably is a good best interests decision.

So when a patient is incapacitous, clinicians and the people who know the patient as an individual – especially family-carers – must work together to determine what is in the patient’s best interests. Family-carers in particular are not ‘passive observers’, and family-carers, relatives and friends who know the patient as an individual are ‘experts in the patient as an individual’, and clinicians must accept and respect that in the same way that lay people must accept that clinicians are experts in clinical things. Clinicians and ‘relatives’ MUST WORK TOGETHER and need to start from a position of TRUSTING EACH OTHER.

Associated files and links:

Post a reply

Marc Sullivan-Wood 13/01/22

Good evening Mike, I have been teaching this subject since 2017 and previously to that I was a registered manager for 26 years, I have struggled to get my staff to understand and I find it increasingly difficult for learners to understand. Thank you for a well written and simplified version for which (if you don’t mind) I will explain as you have written to see if learners understand it correctly, I will feedback to you in due course.


mike stone 03/02/22

Hi Mark,

I must apologise for only just noticing your post.

Thank you for your 'supportive words' re my piece - and I would be really interested, to know if your 'learners' can make sense of what I've written.

mike stone 03/02/22

Drat - Hi Marc! Apologies.

Not sure if I made that mistake, or if auto-correct stepped-in without me noticing: I've been sending many things to a doctor called Mark this morning.