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Major changes are taking place in the law for those working in the mental health field. This article looks at the impact of the Mental Capacity Act (2005) (most of which was implemented in October 2007) and the Mental Health Act (2007) (the main provisions of which came into effect in October 2008). Key elements of each of these two acts will be covered. The ‘Bournewood Safeguards’ inserted into the Mental Capacity Act (2005) by the Mental Health Act (2007) will also be described.

The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 within England and Wales as a framework for making decisions about incapacitated persons' care and treatment generally not amounting to a deprivation of their liberty (although such could be authorised under its powers by the new Court of Protection). From a planned date of April 2009, the MCA is to be enlarged by the provisions of the Mental Health Act 2007 (MHA 2007) to encompass deprivation of liberty, with the addition of a new framework of Deprivation of Liberty Safeguards (DOLS). The MHA 2007 also revised significant aspects of the Mental Health Act 1983 (MHA), which were implemented in November 2008. The interface between the MCA, as amended to include DOLS, and the revised MHA is complex and potentially ambiguous. This paper describes in detail some issues that may arise at the interface of the two acts, and seeks to inform professionals involved in the use of these legal frameworks of the resulting complexity.

The Mental Capacity Act 2005 (HM Government, 2005) introduced safeguards to protect people who lack capacity from intrusive research. While these safeguards stemmed from predominantly medical ethical review concerns and developments aimed to protect people from physical and psychological damage and harm, the Act relates to all forms of research. The implications of the requirements of the Act for the conduct of social care research and the identification of helpful approaches or development of new knowledge concerning people who may lack capacity are, as yet, unknown. There are some concerns that the Act does not fully account for social research, does not recognise its importance to and differences from health‐related research, and may even hamper such research from taking place. This paper describes the findings and implications from a research project funded by the Social Care Institute for Excellence (SCIE) and the Department of Health that considered the impact of the Mental Capacity Act 2005 on the ethical scrutiny and development of social care research. The particular focus of the study was processes relating to university research ethics committees (URECs). The study was undertaken in two stages, beginning with an online survey of UREC policies and procedures and was followed by interviews with social care researchers working in areas in which people may lack capacity according to the terms of the Act. Recommendations for research ethics review are made that will be of importance to practitioners, policy‐makers and researchers.

The Mental Capacity Act 2005 comes into effect in England and Wales in 2007. The Act contains principles, procedures and safeguards to empower people to make decisions for themselves wherever possible, but also to ensure that decisions made on their behalf if they lack the mental capacity to make the decision themselves are done in their best interests. The Act will apply to anyone working in the supported housing field or residential care where residents may lack the capacity to make decisions as a result of illness, injury or disability. This article gives an overview of the Mental Capacity Act and its relevance to the field of supported housing.

This article considers the effectiveness of two one‐day events designed to raise awareness of The Mental Capacity Act 2005 (MCA) in BME communities. The events were held using specially developed materials and were evaluated with the help of a 12‐item questionnaire. The results of the evaluation showed that there was an increase in the proportion of correct responses for 10 of the 12 questions after attending awareness‐raising events. The total score for all correct responses on the 12‐item questionnaire significantly increased after attending the awareness‐raising events. Collectively, the findings suggest that the awareness‐raising events were able to improve awareness of the MCA among representatives of BME communities. Such awareness‐raising events should be encouraged by health and social care providers

The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 in England and Wales. This article reports on two similar, but separate, pilot questionnaire studies that examined the experience of consultants in old age psychiatry and consultants in other psychiatric specialities in the early implementation of the MCA pertaining to issues relevant to black and minority ethnic (BME) groups. Fifty‐two (27%) of the 196 consultants in old age psychiatry and 113 (12%) of the 955 consultants in other psychiatric specialities returned useable questionnaires. Eighty per cent or more of the consultants in old age psychiatry and consultants in other psychiatric specialities gave consideration to religion and culture and ethnicity in the assessment of decision‐making capacity (DMC). Almost 50% of the consultants in old age psychiatry reported that half or more of the patients lacking fluency in English or where English was not their first language received an assessment of DMC with the aid of an interpreter and 40% of the consultants in other psychiatric specialities reported that no such patients received an assessment of DMC with the aid of an interpreter.The low rate of using interpreters is of concern. The nature of the consideration and implementation of factors relevant to culture, ethnicity and religion in the application of the MCA and the precise reasons for the low rate of using interpreters in patients lacking fluency in English or English not being their first language require clarification in further studies.

The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity.

Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”).

It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.

It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgments based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.

This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD.

Monday 1 October sees the implementation of the majority of the Mental Capacity Act 2005 (the Act). Parts of the Act came into operation in April 2007, namely the creation of a new criminal offence of wilful neglect or ill treatment, the provision of Independent Mental Capacity Advocates (IMCAs) in England, and the Code of Practice governing the Act.The months leading up to October have been an exceptionally busy time for the Public Guardianship Office (PGO). The new legislation creates a new Office of the Public Guardian (OPG), which will replace the existing PGO. But there is more to this change than a simple re‐arrangement of words, as shown in this article.

A brief review of the first three years of the Mental Capacity Act 2005 that was fully implemented during 2007.