The Mental Capacity Act is clearly a camel - so why do many people insist it is a horse?

mike stone 22/08/16 Dignity Champions forum

This is an 'opinion piece', and it assumes some familiarity with the Mental Capacity Act 2005. In my opinion, as a lay former family-carer who has read the Act, and much material written about the MCA by professionals, the MCA is a somewhat ugly camel, not the beautiful horse many people think it is. Although I stand to be corrected, if my understanding is flawed. I will point out, that most of the people who see the MCA as a horse, are professionals.

And I'll drop my camel or horse now - I'll write 'I see' and 'others see'.

Others write that it is important to be clear about who the
best-interests decision-maker is, for future decisions: I see an Act which never specifies who can be a best-interests decision-maker, and only does two things: it imposes a legal duty on anybody who makes a decision in place of the mentally-incapable person, to do so in that person's best interests (Section 4(9)), and it sometimes imparts legal authority via welfare attorneys and deputies (Section 6(6)).

Others seem to consider that the involved professionals 'are the experts for best-interests decision-making': I see an act which allows a legally-authorised, but crucially not medically or legally trained, layperson to be appointed as a Health and Welfare Attorney, and once appointed to control best-interests decision-making. Which proves to me, that normal laymen must be able to understand the requirements of best-interests decision-making, at least as well as professionals can.

I see an Act, which is made much more complicated by the consequences of section 42, which establishes further Codes to be 'regarded by' various categories of people, but not by normal family carers, who must obey the Act, but are not required to 'have regard to' the Code. Others see section 42 as helpful, as opposed to a serious complication.

I find it rather weird, that the Act requires the Lord Chancellor to issue a Code of Practice covering Advance Decisions to Refuse Treatment (ADRTs) - but that section 42(4) of the Act does not require the author of an Advance Decision to have regard to any such Code. Others see no paradox in a person who creates an ADRT only needing to consider sections 24-26 of the MCA when the ADRT is created, while professionals who read it must 'have regard to' a Code as well.

I see a camel - others see a horse: an animal cannot be both!