I have often wondered what the legal profession’s equivalent is of the medical advice to ‘Take two paracetamol and call me back in the morning’.
These are two excellent and brief guides, written by doctors for other doctors. Both cover similar ground and are admirably cheap. Although written for medics, they are also excellent for lawyers. The role of the medical profession is fundamental to this subject, whether assessing capacity for clinical decisions or assessing capacity for legal issues.
Lawyers potentially have to advise anyone involved at any stage.
It is now six years since the Mental Capacity Act came into force. Lawyers have had to learn new concepts such as DoLS (deprivation of liberty safeguards) and best interests. Issues of capacity are growing in importance. We now have a new adjective, ‘capacitious’ (having capacity).
A Clinician’s Brief Guide to the Mental Capacity Act is more of a straightforward overview. It has good guidance on holding and running a best interests meeting, but less detailed analysis of the Mental Health Act. It contains the reassuring notice to doctors that treatment must not be for the purpose of ending life.
Mental Capacity Legislation: Principles and Practice has more flesh on bones. There are more worked examples and case studies taken from actual examples or theoretical ones. It makes a good point that capacity is not the only principle, but respect as well. Capacity or no capacity is not just an on/off switch. Also, capacity does not only relate to mental health issues.
These are good books written from an interesting point of view. Different lawyers will have different approaches depending on whether they are a mental health, medical, criminal or family lawyer. But the lawyer will be assisted by knowing how the clinician’s mind works.
Mental Capacity Legislation: Principles and Practice
Edited by Rebecca Jacob, Michael Gunn and Anthony Holland
£25, RCPsych Publications
A Clinician’s Brief Guide to the Mental Capacity Act
Nick Brindle, Tim Branton, Alison Stansfield and Tony Zigmond
£18, RCPsych Publications
David Pickup is senior partner at Aylesbury-based Pickup & Scott