The legal system isn't to blame for Mental Capacity Act fails
Solicitor and Dying Matters trustee Gary Rycroft says increased interaction between health care providers and the legal system around the Mental Capacity Act would hugely benefit people approaching the end of life.
For me, the law is all about empowerment and the freedom of the individual. Yes, the state needs to impose criminal sanctions in respect of certain behaviour and acts, and how far to go in that regard is a philosophical discussion for another day, but in this year when we celebrate 800 years since the sealing of the Magna Carta in 1215 - the Great Charter of Liberties - let us celebrate, applaud and utilise the individual freedom which is available to us.
We have a legal framework - the Mental Capacity Act 2005 (MCA) - which was designed to empower persons with mental capacity issues and it saddens me that the law in this regard is not being used as often as it should be.
Last year, the House of Lords scrutinised the implementation of the MCA. To summarise what was a very long report, the Lords said it was a "visionary piece of legislation" which "suffered from a lack of understanding and a lack of awareness". The response from the Government was that the MCA is indeed "a positive piece of legislation which has the potential to change lives", but the truth is it has not yet made the impact it should have.
The MCA is law. So are lawyers to blame for it not working? Well, sorry, no. We lawyers like the MCA and we encourage our clients to make Lasting Powers of Attorney and Advance Decisions and Advance Statements whenever we can. We also know it's never too early to begin the conversation. The MCA is relevant to end of life care but there's no reason to wait until the end of life to have the discussion. In fact by then it may be too late.
However, the problem for lawyers is we usually only see our clients if they come to us. And if one of our clients is diagnosed with a life-limiting condition we very often do not even find out. It is health and social care professionals who are in the frontline of diagnosis and support and some how lawyers need to get threaded into the system so that their legal knowledge and skills can be deployed to help those who need it.
There is a view that many health care professionals have not embraced the MCA because they remain too paternalistic in their outlook and likewise social care professionals are too risk averse. The truth is not as black and white as that, but if we are silent about the MCA we are to blame for the law not being used as it should be. This is because we all have a responsibility to raise awareness about the MCA and encourage everyone we come across to use the legal rights which are available to them.
I appreciate there may be barriers in terms of cost but I think awareness will help break down those barriers.
Dying Matters have numerous resources about the MCA and planning for the future and theme of this year's Awareness Week from 18 to 25 May is "Talk, Plan, Live". So embrace the opportunity that brings to discuss Lasting Powers of Attorney and the like, as well as other planning tools such as Wills and Funeral Plans.
It is a shame there is not more interaction between lawyers and health and social care professionals. One of the reasons I wanted to become a trustee of the National Council for Palliative Care and Dying Matters is that I think lawyers need to work more closely together with other professionals. We all have the same clients/patients/ service users and we need joined-up thinking.
"Valuing every voice and respecting every right" is what the Government called their response to the House of Lords scrutiny of the the MCA. Let us all do our bit to make that more than a sound bite.
If you want to know more about the MCA a good starting point is a Web Directory recently put together by SCIE brings together some excellent resources and information.
More from Dying Matters and the National Council for Palliative Care
Planning for your future care: this popular guide aims to explain advance care planning to the public. It outlines the different options available to people when planning for their end of life care.
How to help your patients plan - advice for health care professionals.