3. Consent

Relevant Case ◽

The Common ◽

This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery and how this applies to more recent cases. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant case law, including Gillick, which gave rise to the concept, are cited where appropriate.

3. Consent

10.1093/he/9780198815204.003.0003 ◽

2018 ◽

Author(s):

Jo Samanta ◽

Ash Samanta

Keyword(s):

Public Policy ◽

Information Disclosure ◽

Common Law ◽

Mental Capacity ◽

Best Interests ◽

Court Cases ◽

Essential Information ◽

The Common ◽

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant court cases, including Gillick, which gave rise to the concept, are cited where appropriate.

The Mental Capacity Act 2005 and its potential impact on the use of restraint

Psychiatric Bulletin ◽

10.1192/pb.bp.107.016436 ◽

2008 ◽

Vol 32 (4) ◽

pp. 124-126 ◽

Cited By ~ 3

Author(s):

Arthur O. Owino

Keyword(s):

Common Law ◽

Mental Capacity ◽

Best Interest ◽

England And Wales ◽

Time Section ◽

The Common ◽

Potential Impact ◽

Care And Treatment ◽

The staged implementation of the Mental Capacity Act 2005 (further referred to as the Act) began in April 2007 and was completed in October 2007. The Act provides a comprehensive statutory framework for making decisions for people in England and Wales, aged 16 years and over, who lack capacity to make a particular decision at a particular time. Section 5 of the Act codifies the common law doctrine of necessity and provides a defence to anyone who performs an act in connection with the care and treatment of another person – in that person's best interest – reasonably believed to lack capacity in that matter.

Learning capacity- How professionals learn about mental capacity on post qualifying education programmes

The Journal of Practice Teaching and Learning ◽

10.1921/jpts.v17i3.1439 ◽

2021 ◽

Vol 17 (3) ◽

pp. 115-137

Author(s):

Jim Rogers ◽

Lucy Bright

Keyword(s):

Case Law ◽

Mental Capacity ◽

Best Interests ◽

Learning Capacity ◽

Codes Of Practice ◽

Mental Capacity Act ◽

Key Aspects ◽

Vulnerable Adults

The focus of this paper is the way in which learning on a post graduate professional academic training module is developed and articulated via processes of shadowing and the production of two assignments (a written case study and a reflective piece). The context is learning about key aspects of Mental Capacity legislation and the data for the study came from work submitted by fifty students on four successive iterations of a 'best interests assessor' (BIA) training course in England. We sought evidence of the use of key elements including specific sections of the Mental Capacity Act 2005 (MCA) as well as case law; professional values; practice guidance; and classroom education. Moreover we were interested in the ways in which a brief shadowing of a practicing BIA helped to make sense of these disparate elements in practice. Practice guidanc from expert bodies such as SCIE and NICE, the formal legal test of capacity, and certain relevant pieces of case law were not referred to as much as expected, but most candidates showed the ability to deftly navigate the tensions and challenges which arise when trying to meld case law, statute law, codes of practice, and classroom learning and ensure that this is used to safeguard the rights of vulnerable adults.

Transfer to hospital under the Mental Capacity Act 2005

Psychiatric Bulletin ◽

10.1192/pb.bp.108.023499 ◽

2009 ◽

Vol 33 (12) ◽

pp. 465-467

Author(s):

Clare Stephenson ◽

Robert Baskind ◽

Christopher Harris

Keyword(s):

Common Law ◽

Mental Capacity ◽

Fractured Neck Of Femur ◽

Neck Of Femur ◽

Physical Conditions ◽

The Common ◽

The Government ◽

Mental Capacity Act ◽

Legal Grounds

SummaryThis paper presents the case of an elderly gentleman who sustained a fractured neck of femur following a fall at home but refused to go to hospital. His general practitioner determined that he lacked capacity but ambulance and police crews refused to escort him due to concerns regarding deprivation of liberty.The legal grounds for treating people who lack capacity in emergencies are discussed and the development of the common law into the Mental Capacity Act 2005 is demonstrated. the Mental Health Act 1983 is inappropriate to treat primarily physical conditions, whereas deprivation of liberty cannot be authorised by the Mental Capacity Act 2005 without a means of challenging the lawfulness of the detention. In response, the government has produced Deprivation of Liberty Safeguards, which came into force in April 2009.

The Mental Capacity Act 2005: Relevance for the Surgeon

Bulletin of The Royal College of Surgeons of England ◽

10.1308/147363509x436586 ◽

2009 ◽

Vol 91 (5) ◽

pp. 176-179

Author(s):

SS Jameson ◽

UK Amarasuriya ◽

H Vint ◽

MR Reed

Keyword(s):

Surgical Treatment ◽

Emergency Surgery ◽

Common Law ◽

Mental Capacity ◽

Best Interests ◽

Surgical Team ◽

England And Wales ◽

The Past ◽

Patients who lack the capacity to make decisions regarding surgical treatment are complex to manage. In the past, under common law in England and Wales, these patients underwent emergency surgery if in the patient's 'best interests,' as decided by the surgical team. Surgeons in England and Wales now need to understand the changes introduced in October 2007 by the Mental Capacity Act 2005 (MCA).

The Mental Capacity Act 2005, the Mental Health Act 1983, and the Common Law

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v1i13.178 ◽

2014 ◽

Vol 1 (13) ◽

pp. 163

Author(s):

Phil Fennell

Keyword(s):

Mental Health ◽

Common Law ◽

Institutional Care ◽

Mental Capacity ◽

Bodily Integrity ◽

Mental Health Act ◽

European Court ◽

The Common ◽

This paper considers what has come to be known as the ‘interface’ between the Mental Capacity Act 2005 and the Mental Health Act 1983. Until the 2005 Act comes into force in 2007, practitioners will have to be aware of the interface between powers to admit to institutional care and treat without consent under common law and those which exist under the Mental Health Act 1983.In simple terms, the interface question is ‘When may the common law or, after 2007, the 2005 Act, be used to admit to institutional care and treat without consent, and when will use of the Mental Health Act be required?’ This article argues that there are two decisions of the European Court which need to be considered in determining how to bridge what has become the “Bournewood gap”: HL v United Kingdom and Storck v Germany. These will require that the State must provide effective supervisory mechanisms to ensure that mentally incapacitated people are not deprived of their liberty (Article 5) and do not have their right of bodily integrity interfered with (Article 8) without lawful authority.

The Deprivation of Liberty Safeguards – essential protection or bureaucratic monster?

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v0i19.247 ◽

2014 ◽

pp. 117

Author(s):

Roger Hargreaves

Keyword(s):

Mental Health ◽

Common Law ◽

Mental Capacity ◽

Final Decision ◽

Total Absence ◽

European Court ◽

Consent To Treatment ◽

The Common ◽

The Deprivation of Liberty Safeguards ( DoLS), which came into force on the first of April 2009 as an amendment to the Mental Capacity Act 2005, are still commonly referred to as the “Bournewood safeguards,” but in fact the concern about the underlying issue long predates the final decision of the European Court of Human Rights on the Bournewood case. It goes back at least to 1983, when the new Mental Health Act brought in much greater protection for patients who were formally detained in hospital, and in particular for those who lacked the capacity to consent to treatment and who acquired additional safeguards under Part IV of that Act. However, this in turn highlighted the total absence of protection for those patients without capacity who were “de facto detained” under the common law.

With and Without 'Best Interests': the Mental Capacity Act 2005, the Adults With Incapacity (Scotland) Act 2000 and constructing decisions

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v2016i22.549 ◽

2016 ◽

Vol 2016 (22) ◽

pp. 17

Author(s):

Alex Ruck Keene ◽

Adrian D Ward

Keyword(s):

Case Law ◽

Mental Capacity ◽

The Other ◽

Best Interests ◽

Persons With Disabilities ◽

The United Kingdom ◽

Legislative Framework ◽

Mental Capacity Act ◽

Made In

This article compares the bases upon which actions are taken or decisions are made in relation to those considered to lack the material capacity in the Mental Capacity Act 2005 (‘MCA’) and the Adults with Incapacity (Scotland) Act 2000 (‘AWI’). Through a study of (1) the statutory provisions; and (2) the case-law decided under the two statutes, it addresses the question of whether the use of the term ‘best interests’ in the MCA and its – deliberate – absence from the AWI makes a material difference when comparing the two Acts. This question is of considerable importance when examining the compatibility of these legislative regimes in the United Kingdom with the Convention on the Rights of Persons with Disabilities (‘CRPD’). The article is written by two practising lawyers, one a Scottish solicitor, and one an English barrister. Each has sought to cast a critical eye over the legislative framework on the other side of the border between their two jurisdictions as well as over the framework (and jurisprudence) in their own jurisdiction. Its comparative analysis is not one that has previously been attempted; it shows that both jurisdictions are on their own journeys, although not ones with quite the direction that might be anticipated from a plain reading of the respective statutes.

Medical treatment and best interests: judicial interpretation of values, wishes and beliefs under the Mental Capacity Act 2005

The Journal of Adult Protection ◽

10.1108/jap-11-2019-0037 ◽

2020 ◽

Vol 22 (3) ◽

pp. 165-173

Author(s):

Owen P. O'Sullivan

Keyword(s):

Medical Treatment ◽

Clinical Decision ◽

Case Law ◽

Decision Makers ◽

Best Interests ◽

Content Type ◽

The Supreme Court ◽

Mental Capacity Act ◽

The Uk

Purpose The prominence of the best interests principle in the Mental Capacity Act 2005 represented an important transition to a more resolutely patient-centred model regarding decision-making for incapable adults (“P”). This paper aims to examine the courts’ consideration of P’s values, wishes and beliefs in the context of medical treatment, reflect on whether this has resulted in a wide interpretation of the best interests standard and consider how this impacts clinical decision makers. Design/methodology/approach A particular focus will be on case law from the Court of Protection of England and Wales and the Supreme Court of the UK. Cases have been selected for discussion on the basis of the significance of their judgements for the field, the range of issues they illustrate and the extent of commentary and attention they have received in the literature. They are presented as a narrative review and are non-exhaustive. Findings With respect to values, wishes and beliefs, the best interests standard’s interpretation in the courts has been widely varied. Opposing tensions and thematic conflicts have emerged from this case law and were analysed from the perspective of the clinical decision maker. Originality/value This review illustrates the complexity and gravity of decisions of the clinical decision makers and the courts have considered in the context of best interests determinations for incapacitated adults undergoing medical treatment. Subsequent to the first such case before the Supreme Court of the UK, emerging case law trends relating to capacity legislation are considered.

The rebirth of medical paternalism: An NHS Trust v Y

Journal of Medical Ethics ◽

10.1136/medethics-2018-105098 ◽

2018 ◽

Vol 45 (1) ◽

pp. 3-7 ◽

Cited By ~ 6

Author(s):

Charles Foster

Keyword(s):

Patient Autonomy ◽

Public Funding ◽

Mental Capacity ◽

Best Interests ◽

Health Board ◽

Medical Law ◽

The Supreme Court ◽

Medical Paternalism ◽

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.