Abstract

In 1995, the Law Commission was given the task of investigating 'the adequacy of legal and other procedures for decision-making on behalf of mentally incapacitated adults'. It concluded that the law was fragmented and confusing and called for a single statute to govern decision-making on behalf of mentally incapable adults regarding welfare, healthcare and financial matters. There followed a 15 year period of consultation, resulting in the new Mental Capacity Act 2005 which came into full force in October 2007. Dentists who administer treatment to patients suffering from mental incapacity due to dementia, learning disabilities, depression, brain injury and other forms of mental disorder, need to be familiar with the Act and its accompanying Code of Practice. This article looks at how the new Act impacts upon the treatment of incapable patients by dentists, whether they are in general surgery, community or hospital settings. In particular, this article focuses on the provisions of the Act which relate to how and when capacity should be assessed prior to the dentist carrying out treatment and the consequences of a finding of incapacity for both the dentist and the patient in his or her care.

1. Solicitor and Senior Law Lecturer, Centre for Medical and Mental Health Law, School of Law, Northumbria University, Newcastle upon Tyne, NE1 8ST
   e-mail: charlotte.emmett@unn.ac.uk