New professional guidelines help doctors and lawyers assess capacity

15 December 2009

The Law Society has today published guidelines to assist professionals in the assessment of mental capacity.

These guidelines have been jointly prepared by the British Medical Association and the Law Society.

It is estimated that over two million people in England and Wales may at times lack decision-making capacity. This could, for example, be a result of dementia or brain injury, or of a condition present since birth.

Dr Vivienne Nathanson, Head of Ethics and Science at the BMA says:

"This book is an invaluable guide for health professionals and carers. It provides badly needed guidance to protect the interests of people who lack the mental capacity to make decisions about their own future and care.

The incorporation of fully up to date guidance on the Mental Capacity Act means that health professionals can be reassured that their practice is compliant with relevant law and ethics."

The publication of Assessment of Mental Capacity comes at a time when issues arising from an ageing population are at the forefront of political debate, and in the year when the UN Convention on the Rights of Persons with Disabilities was ratified by the UK.

Making a will

The guidelines set out best practice for both professions when dealing with a person who may lack capacity to make a specific decision, such as making a will or giving consent to medical treatment.

Nicola Mackintosh, a member of the Law Society's Mental Health and Disability Committee, said today;

"The implementation of the Mental Capacity Act 2005 and the developing case law in this specialist area has resulted in a pressing need for authoritative guidance. The guide meets that need in a practical way which is easily understood. It will result in much better practice together with vital protection for vulnerable people."

The book also aims to provide practitioners with a deeper understanding of all the issues surrounding assessment of mental capacity and to improve communication between the health care and legal professions.

Senior Judge of the Court of Protection, Denzil Lush, today recommended the book as:

"...a practical guide for doctors and lawyers on how to assess mental capacity. But its potential readership is much broader than that. Other professions, such as clinical psychologists, social workers, brain injury case managers, and even carers, will find it indispensable."