Part V Family Law, 28 Mental Incapacity

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
International Law ◽  
Mental Capacity ◽  
Private International Law ◽  
Habitual Residence ◽  
Special Issue ◽  
Protective Measures ◽  
Mentally Disordered ◽  
Mental Capacity Act 2005 ◽  
Recognition And Enforcement ◽  
Mental Capacity Act

This chapter examines mental incapacity as a special issue in private international law. Problems arise in cases where, for example, a mentally incapacitated person may be present in one country but habitually resident in another when measures of protection are needed; or this person may own property situated in a country different from his present location or habitual residence that needs to be dealt with. This chapter considers the jurisdiction of the English courts to order protective measures over a mentally disordered or incapacitated person or over his property, as well as the choice of law rules governing the protection of mentally incapacitated persons, prior to and under the Mental Capacity Act 2005. It also discusses the recognition and enforcement of protective measures taken abroad, along with cases outside the realm of the Mental Capacity Act.

Is mental capacity in the eye of the beholder?

2017 ◽  
Vol 11 (2) ◽  
pp. 30-39 ◽  
Author(s):  
Alex Ruck Keene
Keyword(s):  
International Law ◽  
Design Methodology ◽  
Case Law ◽  
Mental Capacity ◽  
Persons With Disabilities ◽  
England And Wales ◽  
Content Type ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

Purpose The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity. Design/methodology/approach Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”). Findings It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Research limitations/implications It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgments based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Originality/value This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD.

scholarly journals The concept of objection under the DOLS regime

2014 ◽  
pp. 61
Author(s):  
Matthew McKillop ◽  
John Dawson ◽  
George Szmukler
Keyword(s):  
Mental Health ◽  
Mental Health Treatment ◽  
Mental Capacity ◽  
Mental Health Patient ◽  
Health Treatment ◽  
England And Wales ◽  
Mentally Disordered ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
Hospitalised Patient

<p>In England and Wales, there are now two regimes under which an adult can be deprived of liberty when receiving mental health treatment: the regime established by the Mental Health Act 1983 (MHA), and the Deprivation of Liberty Safeguards (DOLS) authorisation regime established by the Mental Capacity Act 2005 (MCA). Where both regimes might apply to a mentally disordered person in hospital for mental health treatment, a major dividing line between them is the ability of the patient to “object” to being a mental health patient or to being given mental health treatment. If such an objection occurs, a hospitalised patient is ineligible for the DOLS regime and only the MHA regime may be used to authorise the deprivation of their liberty.</p>

The law in England and Wales on mental health treatment in the community

2017 ◽  
Author(s):  
Jo Beswick ◽  
Michael Gunn
Keyword(s):  
Mental Health ◽  
Mental Health Treatment ◽  
Legal Framework ◽  
Mental Capacity ◽  
Community Treatment ◽  
England And Wales ◽  
Mentally Disordered ◽  
Mental Capacity Act 2005 ◽  
Mentally Disordered Offender ◽  
Mental Capacity Act

This chapter examines the legal framework for the treatment of the mentally disordered offender in the community in England and Wales. It examines both some of the ideological questions underlying the care of this group and the legal mechanisms within which treatment can be provided. The chapter begins by examining the principle, endorsed by the Mental Capacity Act 2005, that voluntary treatment will usually be the norm, regardless of setting. It then considers exceptions to these norm situations where legally mandated treatment in the community is permitted. In England and Wales, most of these exceptions are to be found in three pieces of legislation: the Mental Health Act 1983, as amended in 2007 to include community treatment orders; the Mental Capacity Act 2005, with its associated Deprivation of Liberty Safeguards (DOLS); and the Criminal Justice Act 2003.

scholarly journals Fusion of mental health and incapacity legislation

2006 ◽  
Vol 188 (6) ◽  
pp. 504-509 ◽  
Author(s):  
John Dawson ◽  
George Szmukler
Keyword(s):  
Mental Health ◽  
Mental Capacity ◽  
Mental Illnesses ◽  
Law Reform ◽  
Medical Law ◽  
Mentally Disordered ◽  
Commitment Schemes ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
The Uk

SummaryThe enactment of a single legislative scheme governing nonconsensual treatment of both ‘physical’ and ‘mental’ illnesses, based on incapacity principles, has been mooted in recent law reform debates in the UK. We propose a framework for such legislation and consider in more detail the provisions it should contain. The design of legislation that combines the strengths of both incapacity and civil commitment schemes can be readily imagined, based on the criteria for intervention in England and Wales found in the Mental Capacity Act 2005. Such legislation would reduce unjustified legal discrimination against mentally disordered persons and apply consistent ethical principles across medical law.

Legal Regulation of Treatment for Depression

2017 ◽  
Author(s):  
Hugh Series
Keyword(s):  
Legal Regulation ◽  
Mental Capacity ◽  
Medicinal Products ◽  
Over The Counter ◽  
Controlled Drugs ◽  
Treatment Of Depression ◽  
Mental Capacity Act 2005 ◽  
Incapacitated Patients ◽  
Mental Capacity Act ◽  
Over The Counter Medicines

This chapter reviews the legal regulation of treatment of depression as it exists in England and Wales, where medicinal products are regulated largely by the Medicines Act 1988 and the Misuse of Drugs Act 1971. The Medicines Act divides medicinal products into pharmacy only medicines, which can only be purchased under the supervision of a pharmacist, over-the-counter medicines, and prescription only medicines. The Misuse of Drugs Act is concerned with controlled drugs. These are divided into three classes according to their perceived degree of harmfulness. This chapter considers treatment with valid consent and two pieces of legislation that govern people who are sufficiently ill and need to be admitted to hospital: the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA). It also discusses treatment of mentally incapacitated patients and the issue of liberty regarding the admission of a compliant but incapacitated patient to hospital. Finally, it looks at three types of non-medical prescribing in England, issued by independent prescribers, supplementary prescribers, and community practitioners.

scholarly journals The Hague Judgments Convention and How We Negotiated It

2020 ◽  
Author(s):  
Jin Sun ◽  
Qiong WU
Keyword(s):  
International Law ◽  
Great Influence ◽  
Negotiation Process ◽  
Private International Law ◽  
Mutual Benefit ◽  
Global Circulation ◽  
Recognition And Enforcement ◽  
The Hague

Abstract In July 2019, the Hague Conference on Private International Law adopted the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. As an outcome of the Judgments Project, this Convention will exert a great influence on the global circulation of foreign judgments. China attached great importance to the Judgments Project and participated in the full negotiation process. This paper is a reflection of some of the Chinese negotiators’ approaches in handling certain very difficult but important issues in the process, with the hope that it may shed some light on China’s negotiation practice and the principles it adheres to in the international law arena, which are fully in line with the principles of equity and justice, mutual benefit, and win-win outcome.

scholarly journals Disability and Vulnerability: Challenging the Capacity/Incapacity Binary

2017 ◽  
Vol 16 (3) ◽  
pp. 469-481 ◽  
Author(s):  
Beverley Clough
Keyword(s):  
Social Policy ◽  
Mental Capacity ◽  
Feminist Philosophy ◽  
Perceived Vulnerability ◽  
Law And Policy ◽  
Legal Literature ◽  
House Of Lords ◽  
Mental Capacity Act 2005 ◽  
Laws And Policies ◽  
Mental Capacity Act

This article engages with emerging debates in law and feminist philosophy around the concept of vulnerability. Central to this is the call to re-imagine and re-frame vulnerability as universal – as something which is experienced by all individuals, by virtue of their humanity and context as social beings. The implications of this for laws and policies predicated on groups or categories as ‘being vulnerable’ will be explored in this article, using the concept of mental capacity as an example of how the boundary between capacity and incapacity can be contested through this lens. The article will critically consider the Mental Capacity Act 2005 and associated literature, such as Court of Protection cases, the House of Lords Select Committee's post-legislative scrutiny and Serious Case Reviews, which demonstrate the growing concern about the inadequacy of the binary between capacity and incapacity. This in turn provokes a challenge to accepted wisdom in the context of disability more broadly, inviting us to think in particular about the responses to perceived vulnerability that are currently deemed appropriate. Insights from the legal literature invite further exchanges with social policy theorists as to the concept of vulnerability and its challenges and implications for law and policy.

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