Medical Law Matters | January 2024

Mental capacity: making decisions

Here we share an overview of the key areas of discussion together with the recording of our recent seminar on mental capacity.

Mental capacity is the bedrock of all decision making, none more so than in healthcare. It is of paramount importance in ensuring a person’s autonomy and decisions are respected. That someone has the mental capacity to make decisions about healthcare-related issues (or any other issues for that matter) is presumed unless established otherwise.

Having mental capacity enables someone to consider a recommended treatment, use or weigh the information relevant to that treatment and communicate their decision – whatever that decision might be – back to the person they are discussing it with.

It is implied that all adults have mental capacity. That presumption can and must be questioned though when there is doubt over a person’s mental capacity – when they have a disorder of the mind or brain that is apparently rendering them incapable of making a particular decision.

Sometimes it is easy to rebut the presumption of capacity, for example when a patient arrives at hospital comatose. Often though, the issues are blurry and it is not at all straightforward to establish whether or not someone has the mental capacity to make a particular decision, perhaps about medical treatment or perhaps about litigation.

Those are the challenging cases and it was wonderful to spend the afternoon discussing the law around this subject in Cambridge on 23 November 2023 with Alex Ruck Keene KC, Dr Lucy Stephenson and Princess Menkiti-Udom.

Thank you to all those who were able to join the seminar and contribute to the fascinating panel discussion. We analysed how the Court of Protection deals with these complex issues; listened to ways psychiatrists are developing strategies to enable service users to communicate wishes, values and feelings in advance; and absorbed some hugely valuable feedback from someone with lived experience as a carer, learning the importance of the personalised subjective approach to assessing mental capacity. Working through some practical ways to help someone establish mental capacity, we also discussed the fascinating and developing legal landscape of self-binding directives.

I am delighted to share here the recording of the seminar.

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