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Legal Aspects of Mental Capacity By Bridgit Dimond. Blackwell. 2008. £29.99 (pb). 448pp. ISBN: 9781405133593

Published online by Cambridge University Press:  02 January 2018

Matthew Hotopf*
Affiliation:
Department of Psychological Medicine, Institute of Psychiatry, Weston Education Centre, Cutcombe Road, London SE5 9RJ, UK. Email: m.hotopf@iop.kcl.ac.uk
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Abstract

Type
Columns
Copyright
Copyright © Royal College of Psychiatrists, 2009 

Pity the authors of books on mental capacity legislation! Not long after the Mental Capacity Act 2005 – an act which codified the previously confused English common law – was implemented in October 2007, it suddenly ballooned with the amendments added to it by the 2007 revision of the Mental Health Act 1983, which was, in turn, a response to the European Court's ruling on the Bournewood case. One can imagine Bridgit Dimond stopping the presses of Blackwell and wearily returning to her desk to accommodate these changes.

Within mental health, much recent debate has been on the apparently similar functions but very different flavours of the Mental Health Act compared with the Mental Capacity Act. The 2007 revision to the Mental Health Act 1983, coming from the Department of Health, modernised aspects of the earlier legislation but centred decision-making firmly on issues of risk; while the Mental Capacity Act, arising from the Department of Constitutional Affairs, was focused on respect for patient autonomy. These differences in emphasis pervade the two statutes, and reinforce claims that mental health legislation is inherently discriminatory. For example, under the Mental Capacity Act each decision faced by the patient has to be assessed on its own merits, and all decisions made on behalf of the person lacking capacity are made in the person's best interests. Best interests are not quite what most professionals think they are, as the Act emphasises the person's previous desires and wishes above what a professional thinks ‘ought to be done’. Contrast this to the Mental Health Act, where no such requirements are placed on clinicians providing care.

All of which is important, but this debate possibly loses sight of the real advances represented in the Mental Capacity Act. Although many of the issues seem similar for patients with mental disorders treated in mainstream psychiatry, the population the Mental Capacity Act was primarily designed for was people with long-term conditions predominantly affecting cognition – learning disability and dementia – as well as helpfully clarifying the law relating to a range of difficult situations usually involving treatment refusal in general healthcare. For these groups the Act provides a new, clear framework, particularly in relation to issues such as best interests, proxy decision-making and advance decisions.

Professor Dimond – a barrister by background – has written a handbook designed for professionals working in health and social care, which despite being authoritative and comprehensive is also clearly written and easy to use. Early chapters outline some of the basic principles in mental capacity legislation, including case law which influenced the Mental Capacity Act, and a summary of the Human Rights Act. The book then takes us through each of the key components of the Act, with sections organised to describe first what the law says, and second providing worked examples which are compelling case histories. It is through these examples that the book comes alive, with examples of clinical conundrums that clinicians will recognise as cases to lose sleep over – a fate this book will, mercifully, prevent.

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