Is mental capacity in the eye of the beholder?

The law, at least in England and Wales, divides adults [1] into those who have the mental capacity to make decisions and those who do not. This distinction is crucial, and underpins health and social care practice, not least as it answers the questions: (1) can I rely on this person’s consent to an action that I want to carry out; (2) can I override this person’s refusal to consent to an action that I want to carry out; or (3) can I proceed even though the person does not appear to be able to give me consent? In theory, applying the law in England and Wales the Mental Capacity Act 2005 (‘MCA 2005’), will always tell us the answers to these questions, and gives health and social care practitioners the sound basis that they need to carry out their tasks.

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Available online 16 May 2017