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CLINICAL REVIEW: Timothy R J Nicholson, William Cutter, and Matthew Hotopf Assessing mental capacity: the Mental Capacity Act BMJ 2008; 336: 322-325 [Full text]

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Clarification about mental capacity and mental health law

Peter Simmons   (10 February 2008)

The Mental Capacity Act 2005 and Research

Andrew J Ludman   (13 February 2008)

Clarification about mental capacity and mental health law 10 February 2008
Peter Simmons, Consultant Psychiatrist Queen Elizabeth II Hospital, Welwyn Garden City, Hertfordshire. AL7 4HQ Send response to journal: Re: Clarification about mental capacity and mental health law	Nicholson et al state in their article, “Assessing mental capacity: the Mental Capacity Act”: “Except when a court of protection order - a consequence of which is the deprivation of liberty - is in place, the Mental Capacity Act cannot be used to give care involving deprivation of liberty (see code of practice for details).” (1) This is not necessarily correct, and following this advice may make readers believe that they may not give life saving treatment involving deprivation of liberty for physical illness to a person without mental capacity and without an existing court order when it is lawful and necessary to do so. Section 6.52 of the Code of Practice of the Mental Capacity Act 2005 explains the interpretation of “deprivation of liberty” derived from European Court of Human Rights judgements (2). Section 50 paragraph (2) of Part 2 Chapter 2 of the Mental Health Act 2007 amends the Mental Capacity Act 2005 to specifically provide for situations where it is lawful and necessary for “Deprivation of liberty necessary for life- sustaining treatment etc” (3), including whilst a court decision is being sought. The authors state, “The current Mental Health Act (1983) is due to be replaced by a new one (2007) in 2008.” The Mental Health Act 2007 will amend rather than replace the Mental Health Act 1983. The Mental Health Act 2007 Explanatory Notes state “The main purpose of the 2007 Act is to amend the 1983 Act.” (4) References: 1. Nicholson TRJ, Cutter W, Hotopf M. Assessing mental capacity: the Mental Capacity Act. BMJ 2008;336;322-325 http://www.bmj.com/cgi/reprint/336/7639/322 (Accessed 9 February 2008) 2. The Mental Capacity Act 2006 Code of Practice http://www.justice.gov.uk/docs/mca-cp.pdf (Accessed 9 February 2008) 3. Mental Health Act 2007 http://www.opsi.gov.uk/ACTS/acts2007/pdf/ukpga_20070012_en.pdf (Accessed 9 February 2008) 4. Mental Health Act 2007 Explanatory Notes http://www.opsi.gov.uk/acts/acts2007/en/ukpgaen_20070012_en.pdf (Accessed 9 February 2008) Competing interests: None declared
The Mental Capacity Act 2005 and Research 13 February 2008
Andrew J Ludman, Cardiology Research Fellow The Hatter Cardiovascular Institute, University College London, 67 Chenies Mews, WC1E 6HX Send response to journal: Re: The Mental Capacity Act 2005 and Research	Dear Sir, The Clinical Review of the Mental Capacity Act 2005 by Nicholson et al (1) was a useful article for practising clinicians and particularly emphasised the Acts’ aim of protecting those who may lack capacity and the fact that in order to do this, healthcare workers are expected to be able to assess capacity in their everyday work. Whilst the Act could be regarded as protective to both patient and clinician in the circumstances of routine medical care, it has also helped clarify the issue of capacity when patients are asked to take part in research studies. Sections 30 to 34 of the Mental Capacity Act 2005 (2) deal very well with issues of diminished capacity and enrolment in to clinical studies. Far from being too restrictive to those wishing to study groups of patients with diminished capacity, the Act is supportive, as long as the patient group being studied must necessarily be recruited at a time when capacity is diminished and time is of the essence e.g. studies in acute myocardial infarction. Section 31, paragraph 5a, highlights that the research study must have, ‘...the potential to benefit the patient (P) without imposing on P a burden that is disproportionate to the potential benefit to P.’ For researchers it is important to note that the act does not apply necessarily to trials which fall under the Medicines for Human Use Regulations 2004, as separate legislation and guidance exists. Researchers must work closely with their local ethics committee to ensure that the consent process is appropriate to the situation, and that the stipulations of the Act are followed. It is also important to realise that research in patient groups with diminished capacity is essential in some circumstances and that the Mental Capacity Act 2005 clearly allows for this. Yours faithfully, Dr Andrew Ludman References 1. Nicholson TRJ, Cutter W, Hotopf M. Assessing mental capacity: the Mental Capacity Act. British Medical Journal 2008;336:322-5. 2. Department for Constitutional Affairs, United Kingdom. Mental Capacity Act 2005. www.opsi.gov.uk/acts/acts2005/pt1-pb8-I1g30,3. 2008. Accessed 13-2-2008. Competing interests: None declared