To what extent has the Mental Capacity Act 2005 (MCA) achieved its aims?
The aims of the Mental Capacity Act were to identify and protect the rights of people who
lacked the capacity to make specific decisions in a timely manner for themselves. The aims
are commendable, but there are still worryingly large pockets of ignorance of the existence
of the MCA in both public sector services and in the general population. Despite the MCA
being in it’s 6th year of enactment, we still encounter public sector workers believing it’s
something that is discretionary in it’s use: this appears to be a particular feature of health
care, where workers are often of the opinion that if they are ‘doing good’ to someone it
must therefore be in their best interests and due process is often not followed (establishing
capacity etc…). However, there are also examples of excellent practice, and the increased
use of the Court of Protection is an indicator of this: health and social care agencies are
becoming more aware of the need to practice within a legal framework, and that decisions
that may have been made in the past in an almost ‘ad hoc’ manner must now be justified and
transparent. Defensible decision making is becoming part of best practice rather than a
means to avoid being sued. This can only be to the benefit of service users.