The Mental Capacity Act 2005 (MCA) is a statute for England and Wales which governs how decisions are made on behalf of people said to “lack mental capacity”. You can download a copy of the statute from here – although please be aware that it may not reflect all subsequent amendments. The MCA has two Codes of Practice – the general MCA Code of Practice (available here) and a separate Code of Practice governing a framework for detention called the MCA deprivation of liberty safeguards, or ‘DoLS’ (available here).
Getting started with the Mental Capacity Act 2005
If you are completely new to the MCA, many charities such as Mind, the Alzheimer’s Association and Mencap have good introductions to the MCA on their webpages. The government has also produced several booklets on the Mental Capacity Act, including an easy to read booklet, which can be downloaded here.
Case law and legal materials
A range of websites publish free copies of judgments about the MCA. The British and Irish Legal Information Association (BAILII) is the backbone of free law reports in the UK, and it has a dedicated page for judgments from the Court of Protection. BAILII now have a facility whereby you can set up an RSS feed for any newly published cases mentioning a key term: I have set one up for the MCA here.
However, not all judgments make their way onto the BAILII website. Happily, Jonathan Wilson runs an excellent website called Mental Health Law Online (MHLO) where it is possible to obtain almost any published judgment from the Court of Protection, or on mental health law more generally. MHLO also hosts a range of other invaluable resources, such as rules, practice directions, links to articles and blog posts about cases. It even has a bookshop.
Barristers at 39 Essex St chambers publish an excellent monthly newsletter about new MCA cases, with excellent summaries and commentaries, as well as other news and developments and occasional articles. This is a widely read and very highly respected publication. You can also search their online database of cases for case summaries and comments.
Finally, whilst there are many excellent textbooks on the MCA (some are listed here), one rises above them all for it’s line by line analysis of the MCA and its up to date coverage of case law: Richard Jones’ Mental Capacity Act Manual. These are updated every year, and you can buy them at the MHLO bookshop. The print may be so small it may force me to purchase reading glasses prematurely, but nobody who works with the MCA on a regular basis is without a copy.
If you prefer your case law in an elegant bound volume, you can purchase the Court of Protection Law Reports from Jordans.
Various bodies produce reports relating to the MCA:
- The House of Lords Select Committee on the Mental Capacity Act 2005 was set up in 2013. On their website you can find pdfs and videos of its oral evidence sessions, volumes of all the written and oral evidence it received, reports of visits it made to find out about the MCA in practice, and its report on the MCA.
- The Ministry of Justice’s post-legislative scrutiny of the MCA was published in 2010.
- The Department of Health’s post-legislative scrutiny of the MCA DoLS was published in 2013; the House of Commons Health Committee described the implementation of the DoLS as ‘profoundly depressing and complacent’ in their report, and recommended that the Department undertake an urgent review.
- Every year the Care Quality Commission publishes it’s annual report on the DoLS.
- The Health and Social Care Information Centre publish annual statistics on the use of the DoLS.
- Every year the Department of Health produces a report on the Independent Mental Capacity Advocacy Service (here is the 2014 report).
- The Office of the Public Guardian monitors the work of attorneys under LPAs and deputies, their annual reports are here.
- The Official Solicitor acts as litigation friend of last resort for those deemed to lack litigation capacity, and his annual reports are here.
- The Court of Protection has in the past produced written reports about its activity.
Many sectors have produced guidance on the application of the MCA, the DoLS and guidance about the Court of Protection. Much of the more practical guidance about supporting and involving people with decision making is excellent. However, some of the legal guidance around DoLS and the Court of Protection may understate the legal obligations of care providers and public authorities, particularly in relation to the limits of their authority. With those caveats in mind, you may still want to consult:
- The Social Care Institute for Excellence publishes a number of guides on the MCA, the DoLS, adult safeguarding and on the Court of Protection. They have also set up a Directory of MCA resources.
- The Mental Health Foundation has published many interesting reports on the MCA, including research studies and literature reviews.
- The Essex Autonomy Project has several fantastic research briefings on the MCA, and connected philosophy. It also hosts events on the MCA for practitioners, lawyers, philosophers, service users and others which are always stimulating and interesting.
- The British Medical Association has published an MCA toolkit.
- The NHS has guidance on the MCA and carers.
Blogs, news and discussions
The issues the MCA touches upon are profoundly important – socially, politically, and existentially. For this reason, it often provokes a lot of lively debate and discussion, and there are an array of excellent blogs and commentaries on this topic. Some of the research being undertaken on the MCA is listed on our Court of Protection project website.
If you want to chat or ask questions about the MCA, then MHLO has a fantastic email discussion list. A new website entitled Mental Capacity Law and Policy, set up by Alex Ruck Keene (of 39 Essex St Newsletter fame) has news, comment and forums for discussion.
There are also several excellent blogs specifically about the MCA or closely related matters. The Mental Health and Mental Capacity Law Blog, run by Nell Munro and Peter Bartlett at Nottingham University, contains fantastic legal and philosophical commentary and musings. Various other legal blogs also sometimes touch on mental capacity or related issues. The UK Human Rights Blog sometimes covers MCA cases from a human rights angle. Lucy Reed’s Pink Tape blog is about family law, but there are many crossover issues around the way the Court of Protection and the family courts work (especially around ‘transparency’). The Suesspicious Minds blog is by a local authority lawyer and covers the MCA and family law – we don’t know how he keeps up with the pace of case law! Neary Legal is a great housing law blog (run by great people), and sometimes the MCA gets snared up in tenancies and other issues, which get discussed here. The Not So Big Society blog covers a lot of law and policy, often connected with the MCA. Indigo Jo writes Blogistan, which also covers MCA cases amongst other things.
The Masked AMHP is an Approved Mental Health Professional, and so is mostly focussed on the MHA, but sometimes this touches upon MCA issues. Mental Health Cop writes about mental health issues from the perspective of a policemen, his thoughts and reflections are well worth a read. Martin Coyle writes The Distance from Should to Is, which covers many important issues around advocacy. If it’s provocation you’re looking for, then look no further than Anna Raccoon and the Witchfinder General, who often cover Court of Protection cases. The philosopher Tim Thornton writes In the Space of Reasons, which sometimes touches upon mental capacity issues. Over the water in Ireland, they are in the process of major reforms to their capacity laws, and these are often covered on the Human Rights in Ireland blog.
Two must-read blogs stand out. These are written by carers who have been through the wringer with health and social care and the MCA. Mark Neary – the father of Steven Neary (in an important DoLS case) – writes a powerful and moving blog about his experiences. Sarasiobhan writes My Daft Life, which used to be the funniest blog on the block about the life and adventures of her son ‘laughing boy’ (LB). But LB tragically drowned in a bath in an assessment and treatment unit in 2013. I wrote about his death here; an independent investigation later found that it was preventable. Sara is raising money for legal representation at the inquest – her fundraising website is here.
Although they are not about the MCA, I’d like to point you towards some other excellent and thought provoking reads, by people with a lived experience of disability or mental health problems. In the UK, the World of Mentalists (known to followers as TWIM) is ‘ a weekly digest of selected writings from blogs across the Madosphere’. The fabulous Fementalists ‘was established to bridge the gap between mental health activism and feminism’. The Residential Autist (aka Em) writes about life in a residential home, and campaigning. Kaliya Franklin (aka Bendy Girl) writes Benefit Scrounging Scum, with some fantastic commentary on disability rights and welfare issues. For comment on wider disability issues in the UK, see also Disability Now.
There are a lot of great bloggers in the USA. Mad in America is ‘a resource and a community for those interested in rethinking psychiatric care in the United States and abroad.’ My favourite blogger of all time is Amanda Baggs, who has autism and writes Ballast Existenz; it contains some of the most powerful and eloquent pieces I have read about institutionalisation and dehumanisation in ‘care’ services. Coming a close second, Nev Jones’ Ruminations on Madness is thoughtful and thought provoking – covering working in academia and mad activism. Timothy Kelly’s Malingering Normal is also great stuff, often covering interesting issues about madness and identity politics.
I’ve probably missed out some great blogs… if you can think of any which I should list, give me a nudge!