scholarly journals Capacity, value neutrality and the ability to consider the future

2013 ◽  
Vol 9 (1) ◽  
pp. 4-19 ◽  
Author(s):  
Jillian Craigie
Keyword(s):  
Mental Health ◽  
Psychiatric Diagnosis ◽  
Patient Autonomy ◽  
Moral Dilemma ◽  
Mental Capacity ◽  
Health Law ◽  
Mental Health Law ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
Value Neutrality

AbstractCalls for the adoption of a universal capacity approach to replace dedicated mental health law are motivated by the idea that the measures designed to protect patient autonomy in legislation such as the Mental Capacity Act 2005 should apply to everyone, including people with a psychiatric diagnosis. In this article it is argued that a diachronic perspective on questions of mental capacity is necessary if capacity law is to play this broader role, but that employing this perspective in assessments of capacity undermines central patient autonomy preserving features of the legislation, which presents a moral dilemma.

Mental health law

2015 ◽  
Keyword(s):  
Mental Health ◽  
Brain Injuries ◽  
Ethical Issues ◽  
Mental Capacity ◽  
Health Law ◽  
Mental Health Law ◽  
People With Mental Illness ◽  
Mental Capacity Act 2005 ◽  
Legal Frameworks ◽  
Mental Capacity Act

This chapter gives an overview of mental health law. Whilst focusing on the legal specifics in England and Wales, the underlying ethical issues extend to all jurisdictions. It explains the duties that law places on health systems and clinicians to support patients to make decisions about their own health. However, it also explains the legal frameworks in place for children and people with mental illness, brain injuries, learning disabilities, dementia, or personality disorder who may require clinicians to decide their health care. Basic concepts of the Mental Health Act 1983, the Mental Capacity Act 2005, and the Children Act 1989 are described, and parts of the law that psychiatrists need to know are presented concisely and in psychiatric context. The chapter includes a practical approach to mental capacity assessment.

Mental Health Law

2018 ◽  
pp. 127-140
Author(s):  
Anthony Holland ◽  
Elizabeth Fistein ◽  
Cathy Walsh
Keyword(s):  
Mental Health ◽  
Mental Capacity ◽  
Health Interventions ◽  
Family Context ◽  
Clinical Settings ◽  
Health Law ◽  
Legal Basis ◽  
Legal Principles ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

Mental health is everyone’s concern, an idea epitomized by the campaign tag line of the Royal College of Psychiatrists, ‘No Health Without Mental Health’. This chapter will demonstrate how an understanding of a patient’s mental health within his/her social and family context is central to clinical practice. We will consider the legal basis for the treatment of mental ill-health and how it can complicate the treatment of physical illness and lead to ethical and legal concerns. The general legal principles that govern health interventions are explored, and two specific statutes for England and Wales—the Mental Capacity Act 2005 and the Mental Health Act 1983 (as amended 2007)—are both considered in some detail. It will be shown how a sound appreciation of the clinical issues, an understanding of the law, and an ability to apply that law in clinical settings are essential when faced with situations involving mental ill-health.

scholarly journals Mental health law under review: messages from English safeguarding adults reviews

2019 ◽  
Vol 21 (1) ◽  
pp. 46-64
Author(s):  
Jill Manthorpe ◽  
Stephen Martineau
Keyword(s):  
Mental Health ◽  
Design Methodology ◽  
Mental Capacity ◽  
Health Law ◽  
Mental Health Law ◽  
Content Type ◽  
Mental Health Legislation ◽  
Mental Capacity Act ◽  
Health Legislation ◽  
Practical Implications

Purpose The purpose of this paper is to examine safeguarding adults reviews (SARs) that refer to mental health legislation in order to contribute to the review of English mental health law (2018). Design/methodology/approach Searches of a variety of sources were conducted to compile a list of relevant SARs. These are summarised and their contexts assessed for what they reveal about the use and coherence of mental health legislation. Findings The interaction of the statutes under consideration, in particular the Mental Health Act (MHA) 1983, the Mental Capacity Act (MCA) 2005, together with the Care Act 2014, presents challenges to practitioners and the efficacy of their application is variable. Research limitations/implications In light of the absence of a duty to report SARs to a national register, it is possible that relevant SARs were missed in the search phase of this research, meaning that the results do not present a complete picture. Practical implications Examining cases where use of legislative provisions in mental health has been found wanting or legislation may not be easily implemented may inform initiatives to increase understanding of the law in this area. Originality/value This paper’s originality and value lie in its focus on mental health legislation as discussed in SARs at a time when both the MHA 1983 and the MCA 2005 are the focus of attention for reform.

Mental Health and the Law

2014 ◽  
Author(s):  
Paula Murphy ◽  
Tim Exworthy
Keyword(s):  
Mental Health ◽  
Mental Capacity ◽  
Mental Health Practitioners ◽  
Health Law ◽  
Mental Health Law ◽  
Mentally Disordered ◽  
Codes Of Practice ◽  
Health Practitioners ◽  
The Law ◽  
Mental Capacity Act

Mental health law is concerned with the legislation governing the man­agement and treatment of people with a mental disorder. It includes the detention and treatment of patients and covers consent to treatment, mental capacity, deprivation of liberty, human rights, and ethical issues. The law is necessary to safeguard the interests of the patients and also to protect the public from potentially serious harm from a mentally disordered offender. It is crucial that mental health practitioners under­stand the relevant legislation to ensure that they are practising within the realms of the law and also so that they can offer help and advice to patients and carers if required to do so. Mental health legislation is constantly evolving and there are always challenges and changes to existing legislation, so practitioners need to keep up to date with new statutory legislation and case law. An example of this is the Mental Health Act (MHA) 1983, which was amended by the MHA 2007, and amended again by the Health and Social Care Act 2012. In addition, the Mental Capacity Act 2005 was a new statute which came into force in 2007, alongside Deprivation of Liberty Safeguards. There are Codes of Practice for the MHA, the Mental Capacity Act, and the Deprivation of Liberty Safeguards. These provide supplemen­tary guidance on good practice. Mental health practitioners need to take account of the Codes of Practice in their work. Mental health law can be a complex and challenging area, even for the most knowledgeable and experienced practitioners. Most organizations will have an MHA administrator and/or a legal advisor who can provide advice and guidance in matters of uncertainty.

scholarly journals Taking Stock

2014 ◽  
pp. 111
Author(s):  
Brenda Hale
Keyword(s):  
Mental Health ◽  
Social Workers ◽  
Mental Capacity ◽  
Health Law ◽  
Huge Amount ◽  
Code Of Practice ◽  
Mental Health Act ◽  
Codes Of Practice ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

<p>We shall be reflecting on the experience of the three recent upheavals in mental health and mental capacity law – the <em>Mental Capacity Act 2005</em>, most of which came into force on 1 October 2007, accompanied by a Code of Practice; the <em>Mental Health Act 2007</em> amendments to the <em>Mental Health Act 1983</em>, most of which came into force on 3 November 2008, accompanied by its two Codes of Practice; and the <em>Mental Health Act 2007</em> amendments to the <em>Mental Capacity Act 2005</em>, bringing in the so-called deprivation of liberty safeguards or DOLS, on 1 April this year, together with another Code of Practice. That is a huge amount of new law for us all to get to grips with. Things have changed a great deal since I first started teaching Mental Health Law to social workers and psychiatrists in this very City in 1971 – nearly 40 years ago.</p>

scholarly journals Deprivation of liberty: Mental Capacity Act safeguards versus the Mental Health Act

2010 ◽  
Vol 34 (6) ◽  
pp. 246-247 ◽  
Author(s):  
Ruth Cairns ◽  
Genevra Richardson ◽  
Matthew Hotopf
Keyword(s):  
Mental Health ◽  
Mental Capacity ◽  
Health Law ◽  
Mental Health Law ◽  
Mental Health Act ◽  
Mental Capacity Act

SummaryThe Mental Capacity Act deprivation of liberty safeguards have been criticised for their complexity and unclear interface with existing mental health law. The new legislation, which was implemented in April 2009, is likely to pose a challenge to clinical teams.

scholarly journals Foreword

2014 ◽  
Vol 1 (17) ◽  
pp. 5
Author(s):  
John Horne
Keyword(s):  
Mental Health ◽  
Health Education ◽  
Social Care ◽  
Mental Capacity ◽  
Health Law ◽  
Academic Journals ◽  
Mental Health Act ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
Health Review

<p>As readers will be only too aware, the 3rd November 2008 will see the coming into effect of most of the amendments made by the Mental Health Act 2007 to the Mental Health Act 1983. It is also the date on which the Mental Health Review Tribunal becomes one of the new First-tier tribunals within the Health, Education and Social Care Chamber consequent to the provisions of the Tribunals, Courts and Enforcement Act 2007. With the publication of numerous regulations and lengthy Codes, the implementation of the Deprivation of Liberty (formerly a/k Bournewood) safeguards still scheduled to take effect in April 2009, and the Mental Capacity Act 2005 having not yet been in force for even a year, these are very demanding (and interesting) times for all those working in the field covered by mental health law.</p><p>There is so much to be considered and written about, but of course potential authors (particularly at this time) have many other pressing demands made of them, in addition to any requests editors of academic journals may make. Fortunately some have found the time to write for this issue of the JMHL.</p>

The rebirth of medical paternalism: An NHS Trust v Y

2018 ◽  
Vol 45 (1) ◽  
pp. 3-7 ◽  
Author(s):  
Charles Foster
Keyword(s):  
Patient Autonomy ◽  
Public Funding ◽  
Mental Capacity ◽  
Best Interests ◽  
Health Board ◽  
Medical Law ◽  
The Supreme Court ◽  
Mental Capacity Act 2005 ◽  
Medical Paternalism ◽  
Mental Capacity Act

Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than ‘medical best interests’. The 2018 judgment of the Supreme Court in An NHS Trust v Y (which concerned the question of whether a court needed to authorise the withdrawal of life-sustaining clinically administered nutrition/hydration (CANH) from patients in prolonged disorders of consciousness (PDOC)) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests—so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw (at least) life-sustaining CANH from (at least) patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges.

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