The Mental Capacity Act--a balance between protection and liberty

Abstract

The stated aim of the Mental Capacity Act is to provide greater protection to those who may lose their mental capacities, particularly in terms of informed consent, patient affairs, advanced decisions and research. This article attempts to explore this new statute by way of examining the scope to which the Act departs from the previous Common Law. Three key themes are identified within this new Act, which differentiate it from Common Law: patients' best interests, which is paramount to any care or treatment; proxy consent, whereby donees can now be appointed to take charge of medical decisions; and advanced directives, where so-called living wills can be enforced provided that they are specific, written, signed and witnessed. However, upon examining the statute it appears that rather than increasing patient autonomy and self-determination, evidence suggests that power is still being held by the medical profession. Whether patients have full autonomy or not, the main issue could be how to strike an effective and workable balance between protection and liberty.