A Clinician’s Brief Guide to Dementia and the Law (Nick Brindle, Michael Kennedy, Christian Walsh and Ben Alderson, Cambridge Medicine, 2023, paperback and ebook, 180 pages, c.£25).
This can be a brief review, of a deliberately brief book. In short, it is a very good, concise guide to how dementia interacts with the key legal frameworks in England & Wales. Written by a multi-disciplinary team, it starts with a very helpful overview of the key features of dementia. It then includes a helpful chapter on the wider social and legal context to dementia, before moving to address the legal framework at high level and then providing crisp and useful chapters on, for instance, the MCA 2005, the MHA 1983 and deprivation of liberty, as well as on the interface between dementia and the criminal justice system. The chapter on the assessment of capacity is particularly good, balancing as it does the legal requirements with practical guidance for clinicians who are required (for whatever reason) to consider whether a person has capacity to make a relevant decision. It also, importantly, emphasises that, while tests such as the MMSE are useful diagnostically, they should not be used as a substitute for a specific assessment of decision-making capacity.
I have one regret about the book, and one health warning, both relating to the chapter on deprivation of liberty.
The regret is that the authors did not perhaps get a little further into the interface between the MCA and the MHA, as this is a notoriously problematic area, nowhere more so than in the context of those with dementia. Whilst, on one view, and self-evidently, each case has to be considered individually, it would have been good had this very expert group of authors given their own views as to how to think about ‘objection’ to admission and/or treatment for mental disorder in the context of dementia.
The health warning relates to the authors’ (perhaps understandable) reliance on Chapter 12 of the draft Code of Practice published for consultation at a time when it was understood (including by them) that the Liberty Protection Safeguards were going to be coming into force. Chapter 12 included statements about the definition of deprivation of liberty (especially as regards the meaning of ‘supervision’ and ‘control’) which were very difficult to square with the case law; it also made the assertion that advance consent could be relied upon in the context of admission to mental health hospital, such that a patient currently lacking capacity to consent to admission does not need to be subject to either the MHA 1983 or DoLS, a proposition with which no-one other than the Department of Health and Social Care agrees (as far as I can tell). The authors include references to both of these matters, such that the book could be read as suggesting that they represent the law. Chapter 12 has been consigned, at least for now, to the dustbin of history, and there is therefore no need for anyone to have regard to it in the discharge of their statutory functions, nor, therefore, to take these references as setting out the correct position.
Overall, however, this book is a really valuable addition to the armouries of clinicians working in this field – and, indeed, I would suggest, for lawyers as well seeking to understand the manifestations and challenges of dementia.