Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers(Third edition)

The Journal of Adult Protection

ISSN: 1466-8203

Article publication date: 11 April 2011



Hewitt, D. (2011), "Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers(Third edition)", The Journal of Adult Protection, Vol. 13 No. 2, pp. 114-115.



Emerald Group Publishing Limited

Copyright © 2011, Emerald Group Publishing Limited

Where someone receives health care or social care services, everything turns on the question of capacity. In most cases, a capable person can only be given care to which he or she consents, while with someone who lacks capacity an entirely different process applies. Get the rules wrong, and civil, disciplinary and even criminal proceedings can follow. That is where this venerable book comes in, and its third edition is sure to prove popular with the doctors and lawyers for whom it is primarily intended.

First published in 1995, Assessment of Mental Capacity aims to provide practical, jargon‐free guidance for the legal and medical professions, and to help them communicate with each other when crucial decisions have to be made. The book achieves that modest aim pretty well, while also demonstrating just why a new edition was required: law and practice relating to mental capacity have changed substantially, even since 2004, when the second edition was published. Not least, of course, we have had the Mental Capacity Act 2005, which finally put much of the law concerning incapable people on a statutory footing. In his preface to this edition, Denzil Lush, the Senior Judge of the Court of Protection, suggests that recent developments have in fact been a mixed blessing, for: […] in the process of becoming a more exact science, mental capacity has become more complicated, and there is a risk that sooner or later we will be unable to see the wood for the trees (Some might argue, as Judge Lush himself suggests, that with the introduction of the Deprivation of Liberty Safeguards that point has now been reached.)

The book has 17 chapters, the longest of which, on capacity to make health care decisions, is only 20 pages long. They cover such things as confidentiality, the environment for capacity assessments, refusals to be assessed, the giving of evidence and the witnessing of documents. The emphasis is always on the practical, and there is even space to discuss that perennial question: who should assess capacity? (It does not always have to be a psychiatrist, or even a doctor.) It is this guidance that is the most helpful aspect of the book.

There are also explanations of various different tests for capacity, including those applicable to financial dealings, making a will or a gift, entering into a contract, voting and personal and sexual relationships. This is also helpful, because many of these issues do not fall within – indeed, they are explicitly excluded from – the Mental Capacity Act. But although these surveys are admirably concise, they also illustrate my one reservation about the book.

In fact, my reservation is not about the book per se, so much as about its type: I fear it is neither‐fish‐nor‐foul; neither a punchy aide‐memoire nor a full‐scale analysis of its subject. Much of the third edition is simply a summary of issues now dealt with at more length, and therefore more helpfully, elsewhere. This could well be the fault of the Mental Capacity Act, of course, for it has certainly simplified the law. The protection confirmed with admirable concision by Section 5, for example, was previously the province of a veritable law library of authorities. Maybe there is no longer the need for a work such as the first and second editions of this one, which provided both a synthesis of and a gloss upon the law of the time. Maybe we now have sufficient in the Act and its Code (three chapters of which are, in any case, reprinted here).

This minor reservation aside, there is no denying the influence of this book. Preceding editions have been cited in many leading judgments, not least Masterman‐Lister, in which, in 2002, the capacity to litigate was separated from the capacity to manage one's property and affairs. That conclusion is in fact representative of what has subsequently become a distinct trend: the fragmenting of decisions into myriad constituents, and the developing of discrete, even if related, capacity tests for each.

And yet, this proliferation might come to be seen as a historical anomaly, such is the power and, it seems, the reach of the Mental Capacity Act. The Code of Practice begs shamefacedly for the Act's definition to be imported into new capacity tests, even in areas of life currently excluded from the Act; and that definition has even penetrated the Mental Health Act: patients who have the capacity to do so may refuse ECT, even if they are detained in hospital, and it is according to the Mental Capacity Act that their capacity is to be assessed.

Though a single, consolidated definition of capacity would be a powerful tool, it is possible that the most interesting developments would take place beyond its reach. The Mental Capacity Act and the new, improved Court of Protection that it introduced seem to have brought an end to the High Court's “inherent” jurisdiction over incapable people. Not to be outdone, the court seems intent on carving out a new role for itself. In the last couple of years, it has signalled its willingness to offer a remedy to people who are “vulnerable”, even though they might not be incapable. That, of course, would pose different, but no less compelling, definitional problems. They are problems, however, that are well beyond the scope of this otherwise helpful work.

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