Literature Review on Provision of Appropriate and Accessible ...

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• What action the law requires if a person is judged not to have the
capacity to make a healthcare decision (LRC, 2006: 32).
In this regard, <strong>Literature</strong> Sections <strong>Review</strong> 27(2) on and Provision 27(3) of of the Appropriate Mental Capacity and Accessible and
Support to People with an Intellectual Disability who are
Guardianship Bill, 2008 [44] (Private Members’ Bill) provide for the
Experiencing Crisis Pregnancy
appointment of a ‘Working Group on Capacity to make Healthcare
Decisions’, a body which would be tasked to formulate a code of practice
on assessment of capacity. (The Scheme of Mental Capacity Bill 2008
does not provide for a working group on capacity; however, it does
require consultation with relevant expert groups before preparing a code
(Head 39(3)).
In the United Kingdom, there is detailed guidance available to medical
professionals and lawyers, which was published in 2004 before the
implementation of the Mental Capacity Act, 2005. [45] The guidance
examines the key roles doctors and lawyers play in the assessment of
capacity, and covers legal principles, the specific legal tests for capacity
and practical guidelines for doctors and lawyers. (In the UK, the Mental
Capacity Act 2005 Code of Practice provides detailed guidance on the
assessment of capacity.)
Research findings in England have demonstrated that the knowledge
base on assessment of capacity issues amongst medical professionals
was inadequate. For example, in a study of 129 health professionals
(including 35 GPs, 31 psychiatrists, 29 old-age psychiatrists, and 34
final-year medical students) correct answers on capacity to consent to
or refuse medical treatment were given by only 20 per cent of the GPs,
and 15 per cent of respondents believed that they could forcibly treat an
individual who refused (Jackson and Warner, 2002; see also Carlson,
Hames, English and Wills, 2004). Donnelly (2007) points out that given
the lack of guidance for Irish doctors, there is likely to be an even greater
level of confusion in this jurisdiction.
44 This is a Private Members’ Bill, which reproduces the suggested draft Bill in the
Law Reform Commission report. Subsequent to this, the Department for Justice
Equality and Law Reform has produced draft Heads of its own Bill (Scheme of
Mental Capacity Bill 2008.)
45 British Medical Association and the Law Society (2004) - Assessment of Mental
Capacity. Guidance for Doctors and Lawyers.