Miscellaneous

2019 ◽  
pp. 865-902
Keyword(s):  
Palliative Medicine ◽  
Legal Framework ◽  
Mental Capacity ◽  
Ethical Framework ◽  
Standards Of Care ◽  
Power Of Attorney ◽  
Medical Litigation ◽  
Mental Capacity Act ◽  
Difficult Situations ◽  
Selection Of

This chapter describes covers the legal and professional standards of care required in palliative medicine, including the Mental Capacity Act, lasting power of attorney, and restraint or deprivation of liberty. Medicine frequently poses complex situations that as clinicians can challenge our understanding of the legal and ethical framework we work within. The legal framework is structured to protect patients and doctors, and provide guidance in dealing with what can sometimes be unclear and difficult situations. In addition, doctors, like all other healthcare professionals, work in an increasingly litigious and legally regulated environment. Sadly, for both patients and doctors, at times a simple failure by doctors to appreciate the nature and extent of their legal and professional responsibilities can lead to significant medico-legal problems. Furthermore, clinical negligence is covered, including landmark cases in medical litigation. The process for death certification and referral to the coroner is covered, and fitness to drive DVLA requirements are explained. Plans for travelling abroad during the end of life, donor requirements, and a selection of useful resources for patients and laboratory reference values are included.

scholarly journals Making healthcare decisions in a person’s best interests when they lack capacity: clinical guidance based on a review of evidence

2019 ◽  
Vol 33 (10) ◽  
pp. 1571-1585 ◽  
Author(s):  
Derick T Wade ◽  
Celia Kitzinger
Keyword(s):  
Decision Making ◽  
Decision Maker ◽  
Medical Condition ◽  
Legal Framework ◽  
Mental Capacity ◽  
Best Interests ◽  
Power Of Attorney ◽  
England And Wales ◽  
Mandatory Training ◽  
Mental Capacity Act

Objective: To clarify the concept of best interests, setting out how they should be ascertained and used to make healthcare decisions for patients who lack the mental capacity to make decisions. Context: The legal framework is the Mental Capacity Act (MCA) 2005, which applies to England and Wales. Theory: Unless there is a valid and applicable Advance Decision, an appointed decision-maker needs to decide for those without capacity. This may be someone appointed by the patient through a Lasting Power of Attorney, or a Deputy appointed by the court. Otherwise the decision-maker is usually the responsible clinician. Different approaches exist to surrogate decision-making cross-nationally. In England and Wales, decision-making is governed by the MCA 2005, which uses a person-centred, flexible best interests (substituted interests) approach. Observations: The MCA is often not followed in healthcare settings, despite widespread mandatory training. The possible reasons include its focus on single decisions, when multiple decisions are made daily, the potential time involved and lack of clarity about who is the responsible decision-maker. Solution: One solution is to decide a strategic policy to cover more significant (usually health-related) decisions and to separate these from day-to-day relational decisions covering care and activities. Once persistent lack of capacity is confirmed, an early meeting should be arranged with family and friends, to start a process of sharing information about the patient’s medical condition and their values, wishes, feelings and beliefs with a view to making timely treatment decisions in the patient’s best interests.

scholarly journals Assessment of mental capacity: a flow chart guide

2007 ◽  
Vol 31 (8) ◽  
pp. 304-307 ◽  
Author(s):  
Michael Church ◽  
Sarah Watts
Keyword(s):  
Good Practice ◽  
Good Clinical Practice ◽  
Legal Framework ◽  
Mental Capacity ◽  
Flow Chart ◽  
Code Of Practice ◽  
Health And Social Care ◽  
Mental Capacity Act 2005 ◽  
Informal Carers ◽  
Mental Capacity Act

The Mental Capacity Act 2005 provides a new legal framework within which health and social care professionals (as well as informal carers) must act when providing care and treatment for the estimated 2 million people in England, Wales and Northern Ireland who lack the capacity to make certain decisions for themselves. Although the Mental Capacity Act 2005 Code of Practice provides comprehensive advice on good practice in assessing capacity, it does not identify a specific process to be used. Good clinical practice depends on the exercise of clinical judgement within a valid and contestable process. This article outlines a flow chart (Fig. 1) that can be used to guide the process of capacity assessments in more complex cases, in line with the Mental Capacity Act 2005 and the Code of Practice.

Legal and professional standards of care

2010 ◽  
Author(s):  
Max Watson ◽  
Caroline Lucas ◽  
Andrew Hoy ◽  
Jo Wells
Keyword(s):  
Mental Capacity ◽  
Professional Standards ◽  
Standards Of Care ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

This chapter on legal and professional standards of care covers the Mental Capacity Act 2005 (MCA), and clinical negligence.

scholarly journals The Mental Capacity Act and mental healthcare in prison: opportunities and challenges

2012 ◽  
Vol 36 (7) ◽  
pp. 241-243 ◽  
Author(s):  
Sharon Davies ◽  
Claire Dimond
Keyword(s):  
Mental Health ◽  
Mental Illness ◽  
Mental Healthcare ◽  
Legal Framework ◽  
Mental Capacity ◽  
Best Interests ◽  
People With Mental Illness ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
The Uk

SummaryThe UK Mental Health Act 1983 does not apply in prison. The legal framework for the care and treatment of people with mental illness in prison is provided by the Mental Capacity Act 2005. We raise dilemmas about its use. We highlight how assessing best interests and defining harm involves making challenging judgements. How best interests and harm are interpreted has a potentially significant impact on clinical practice within a prison context.

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 Adults who refuse blood transfusion in emergency, urgent and elective circumstances

2014 ◽  
Vol 96 (8) ◽  
pp. 568-570 ◽  
Author(s):  
R Wheeler
Keyword(s):  
Blood Transfusion ◽  
Legal Framework ◽  
Mental Capacity ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

Surgeons dealing with an adult refusing a blood transfusion find themselves in an unenviable position, torn between wishing to preserve the patient’s life while also respecting his or her wishes. This article looks at the legal framework for such circumstances as set out in the Mental Capacity Act 2005.

scholarly journals Capacity and Consent in England and Wales: The Mental Capacity Act under Scrutiny

2010 ◽  
Vol 19 (3) ◽  
pp. 344-352 ◽  
Author(s):  
PETER HERISSONE-KELLY
Keyword(s):  
Mental Health ◽  
Learning Disabilities ◽  
Mental Health Problems ◽  
Legal Framework ◽  
Mental Capacity ◽  
Decision Makers ◽  
England And Wales ◽  
Mental Capacity Act 2005 ◽  
Advance Decisions ◽  
Mental Capacity Act

The Mental Capacity Act 2005 came into force in England and Wales in 2007. Its primary purpose is to provide “a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves.” Examples of such people are those with dementia, learning disabilities, mental health problems, and so on. The Act also gives those who currently have capacity a legal framework within which they can make arrangements for a time when they may come to lack it. Toward this end, it allows for them to make advance decisions (in effect, refusals of consent to certain forms of treatment) or to appoint proxy decision makers with lasting powers of attorney.

Assessing mental capacity

2021 ◽  
pp. 175573802110316
Author(s):  
Alice Neilson
Keyword(s):  
Cognitive Impairment ◽  
Healthcare Professionals ◽  
Legal Framework ◽  
Mental Capacity ◽  
Time Dependent ◽  
Best Interests ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
Over Time

Mental capacity is the ability to retain, process, and weigh up information to provide a completely objective decision independent of any cognitive impairment present. Awareness of an individual’s mental capacity is important for all healthcare professionals. Mental capacity and capacity assessments are guided by the legal framework; the Mental Capacity Act 2005. Mental capacity assessments enable practitioners to determine if a patient is able to make reasoned decisions independently, or whether the patient requires assistance in their best interests and are decision and time dependent. Therefore, capacity can fluctuate over time and if someone is deemed to have no capacity on one occasion this does not mean that they should be assumed to consistently lack capacity. The act delivers five key principles to follow in order to determine whether an individual has or lacks mental capacity.

scholarly journals The legal justification for donor optimisation procedures

2016 ◽  
Vol 11 (4) ◽  
pp. 122-129 ◽  
Author(s):  
Sarah-Jane Brown
Keyword(s):  
Human Tissue ◽  
Organ Procurement ◽  
Legal Framework ◽  
Mental Capacity ◽  
Best Interests ◽  
Tissue Act ◽  
Legal Justification ◽  
Mental Capacity Act ◽  
Human Tissue Act ◽  
The Uk

Current organ procurement policies in the UK include ante-mortem interventions to facilitate organ donation. However, a clear and unambiguous legal framework for these procedures does not currently exist. The Human Tissue Act (HTA) 2004 does not provide authority for donor optimisation procedures before death, and there are a number of difficulties in encompassing these procedures within the Mental Capacity Act (MCA) 2005 provisions on best interests. This article proposes a system of specific advance consent to enable best interests to take on its ascribed role as the legal justification for donor optimisation procedures.

Powers of Attorney and ‘Lack of Capacity’ under the Mental Capacity Act 2005: A Narrowing of the s 44 Offence? R v Kurtz [2018] EWCA Crim 2743

2019 ◽  
Vol 84 (1) ◽  
pp. 74-82
Author(s):  
John Taggart
Keyword(s):  
Turning Point ◽  
Mental Capacity ◽  
Criminal Offence ◽  
Power Of Attorney ◽  
Mental Capacity Act 2005 ◽  
Criminal Charge ◽  
Mental Capacity Act ◽  
The Individual ◽  
Court Of Appeal ◽  
Real Challenge

The Mental Capacity Act (MCA) 2005 marked a turning point in the statutory rights of people who may lack capacity. The legislation sought to place the individual at the centre of decision-making and was viewed as having the potential to give people a voice and an opportunity to be heard. Section 44 of the legislation introduced a criminal offence of ‘ill treatment or neglect’ of a person who lacks capacity. The maximum sentence of five years’ imprisonment (or a fine or both) was intended to underly the seriousness of the offence, especially considering the vulnerability of potential victims. Interpreting s 44 has, however, proved a real challenge and the courts have acknowledged the difficulties which its drafting presents. The recent Court of Appeal (COA) decision in R v Kurtz is illustrative of the kind of issue that the statute has generated. The court was tasked with deciding whether proving a lack of capacity on the part of the victim is required when the donee of a power of attorney is charged with the offence under s 44(1)(b). This article considers Kurtz within the context of the MCA 2005 and notes three related COA decisions. It examines what impact Kurtz may have on future prosecutions brought under s 44(1)(b) and considers the future of the s 44 criminal charge more generally.

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