So that was 2015

Alex Ruck Keene provides a mini-review of developments in relation to mental capacity in 2015.

I think that it can properly be said that 2015 was the year that the Mental Capacity Act, if it did not reach adulthood, then at least started to move out of its prolonged and difficult childhood.

We now have judges who are ready really to grapple both with questions of capacity and best interests; we have clear confirmation that a failure to comply with the steps required by s.4 MCA removes the ability to rely upon the s.5 defence; we have at least the beginnings of a solution to the Deprivation of Liberty Safeguards (DOLS) dilemma; and we are well on the way to reforms of the Court of Protection rules to ensure that applications are determined more speedily and proportionately (and, if all goes well, with a greater degree of openness).

I have also been genuinely impressed with the thoughtfulness of the questions posed of me by professionals of all hues as I undertake training up and down the country as they seek to explore how the framework of the law actually applies in real life.

Of course, all is not roses in the garden. There is a depressingly continuous drumbeat of reported cases where safeguarding and the MCA crash into each other to the benefit of no-one, least of all the person at the heart of the case. The cuts to public services means that the options available to choose between on behalf of P are ever fewer (although do please, please, remember that it is very easy to render an option unavailable by being too risk averse – it is really necessary that the person has 24 hour 1-1 care if a smaller, and cheaper, package would allow them to remain at home…?). Difficulties in finding – and funding – advocates means that it can be all too easy for the voice of P to be lost, and (in the court context) the courts are having to take a great deal on trust.   Even if we are beginning to grope towards a solution of the DOLS dilemma, we are several years off implementation of any legislative solution, and – impressionistically – it is at present at real risk of distorting dangerously both thinking and practice and, at least in some quarters, giving the MCA itself a bad name. Further, it is becoming increasingly clear that the MCA itself, whilst visionary in its time, is legislation of a previous generation and requires (at a minimum) reorientation to adapt to a world in which decision-making genuinely starts (and indeed, where remotely possible) finishes with the person concerned.

There is much to do, therefore, in 2016. My plate is full as I spend most of the year on secondment as consultant to the Law Commission and I am therefore taking this opportunity to slim down the website slightly so as to concentrate on posts (when I have the time) and maintaining the resources pages. For discussions, feel free to comment on the posts, but also do please visit Jonathan Wilson’s admirable Mental Health Law Online, and – if appropriate – join the discussion list (the quality of which never fails to amaze me).

Alex Ruck Keene is a barrister at 39 Essex Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on Alex’s Mental Capacity Law and Policy blog.