Conceptual and Ethical Problems in the Mental Capacity Act 2005: An Interrogation of the Assessment Process

Abstract

Central to the Mental Capacity Act 2005 (MCA) is the claim that a conferral of incapacity may not be based on the wisdom of a decision alone. This paper problematizes this position. Values-based medicine is drawn on to explore the process of capacity assessment, highlighting the presence of preconceptions throughout assessment. Two cases before the Court of Protection are examined to bring into focus the complexity of conducting assessment without reference to wisdom. The paper proposes that every stage in the assessment of capacity is undertaken with reference to preconceptions and that an acknowledgement of these, along with transparency about when they are to be employed, would allow for greater clarity about what the MCA demands of practitioners.