Scrutinising the Mental Capacity Act 2005 for England and Wales

The Mental Capacity Act (2005) for England and Wales came into force in 2007. It was designed to codify the law in relation to decision making on behalf of adults lacking the capacity to make specified decisions on their own behalf. In 2013, the House of Lords established a Select Committee on the Act in order to explore how well it was achieving its aims and whether any substantive amendments were required.1 In particular the Committee wanted to identify whether the Act was achieving an appropriate balance between enabling adults who may have impaired capacity to make as many decisions as possible and providing protection to those adults who needed it. The British Medical Association (BMA) submitted a written response to the Committee's call for evidence. Although in general strongly supportive of the Act, the BMA raised some concerns about the lack of awareness among front-line health professionals. In addition, the BMA expressed concerns that in some instances, in the absence of a binding advance decision, insufficient weight was given to the prior competent wishes of adults now lacking capacity.

The scrutiny committee also invited views on whether the Act was compliant with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The Convention requires equal treatment for all disabled people, irrespective of whether their disabilities are physical or mental. Article 12 of the Convention requires that “persons with disabilities have the right to recognition everywhere as persons before the law”.2 It is possible that a right to equal recognition before the law could render the Mental Capacity Act's surrogate decision-making regime unlawful.

Along with several other medical bodies, the BMA was invited to give oral evidence to the scrutiny committee. The Committee was particularly interested in identifying what medical bodies could do both to …