End of Life

2018 ◽  
pp. 73-86
Author(s):  
Zoë Fritz
Keyword(s):  
Assisted Suicide ◽  
General Medical Council ◽  
Mental Capacity ◽  
Best Interests ◽  
Organ Support ◽  
Medical Council ◽  
Life Sustaining Treatment ◽  
Mental Capacity Act ◽  
The Right

All practising clinicians will inevitably have to deal with the death of their patients. It is very important that we acknowledge our own biases and subjugate those to the needs of the patient for whom we are caring. Doctors prescribe drugs to alleviate symptoms or apply organ support to those whose bodies are failing. They can be asked, by patients or families, to provide life-sustaining treatments that do not offer any clinical relief or to administer drugs to ‘end suffering’. At both extremes, there are laws to protect both patient and doctor. It is this legislation, case law, and General Medical Council guidance that will be reviewed in this chapter. Discussion will focus on the right to refuse life-sustaining treatment; the role of the Mental Capacity Act and respecting ‘best interests’; the legal (and philosophical) distinction between withholding and withdrawing treatment; the doctrine of double effect; assisted suicide; and euthanasia.

scholarly journals The Use of Neuroscience and Psychological Measurement in England's Court of Protection

2020 ◽  
Vol 11 ◽  
Author(s):  
Andrew McWilliams ◽  
Stephen M. Fleming ◽  
Anthony S. David ◽  
Gareth Owen
Keyword(s):  
Brain Function ◽  
Mini Mental State Examination ◽  
Case Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Quantitative Review ◽  
Mental Capacity Act ◽  
State Examination ◽  
Neuroscience Community

The 2005 Mental Capacity Act of England and Wales provides a description in statute law of a test determining if a person lacks “mental capacity” to take a particular decision and describes how the “best interests” of such a person should be determined. The Act established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts. Human rights organisations and others have raised concerns about the nature of assessments for incapacity, including the role of brain investigations and psychometric tests.Aim: Describe use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings.Method: Quantitative review of case law using all CoP judgments published until 2019. The judgments (n = 408) were read to generate a subset referring to structured testing (n = 50). These were then examined in detail to extract the nature of the measurements, circumstances of their use and features of interpretation by the court.Results: The 408 judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. 120/146 (82.2%) referred to “impairment of mind or brain,” with this being part of assessment for incapacity in 58/146 (39.7%). Measurement referred on 25/146 (17.1%) occasions to “functional decision-making abilities.” Structured measures were used most commonly by psychiatrists and psychologists. Psychological measurements comprised 66.4% of measures. Neuroimaging and electrophysiology were presented for diagnostic purposes only. A small number of behavioural measures were used for people with disorders of consciousness. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once. Judges rarely integrated measurements in their capacity determinations.Conclusion: Structured testing of brain and psychological function is used in limited ways in the Court of Protection. Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom.

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.

The Mental Capacity Act 2005 best interests test as applied to the elderly – is it fit for purpose?

2018 ◽  
Vol 86 (3) ◽  
pp. 142-146
Author(s):  
Emma M Szelepet
Keyword(s):  
The Elderly ◽  
Mental Capacity ◽  
The Body ◽  
Best Interests ◽  
Human Flourishing ◽  
Undue Influence ◽  
Mental Capacity Act 2005 ◽  
Physical Risk ◽  
Fit For Purpose ◽  
Mental Capacity Act

The Mental Capacity Act 2005 (‘MCA’) sets out a regime which governs the making of decisions for people who lack mental capacity. Acts must be carried out, and decisions made, for such an incapacitated person, based on what is in her best interests (section 4 MCA). In this paper, I consider the body of post-MCA case law which applies the MCA best interests test to decision-making for elderly people, in various contexts. Is the best interests test ‘fit for purpose’ for the vulnerable elderly? The key aims of Parliament in introducing the test seem to have been empowerment, protection and support – and alertness to undue influence – as well as a balance between the objective and subjective viewpoints. Laudable attempts have been made by some judges, applying the MCA, to pay real heed to the patient's wishes and values, and to balance physical risk with welfare and happiness. However, it is not yet clear in my view that the new regime fully achieves Parliament’s aims. Indeed, these aims themselves should be expanded; the law in this area should also promote the significance and value of advanced years and should recognise Aristotle's concept of ‘human flourishing’ in old age. Consideration should be given to amending the MCA, adding guidance specifically for the elderly and also to introducing a Convention of Human Rights for the older person and to creating a new statutory Older Persons’ Commissioner and/or a cabinet-level Minister for Ageing and Older People.

3. Consent

2021 ◽  
pp. 37-58
Author(s):  
Jo Samanta ◽  
Ash Samanta
Keyword(s):  
Public Policy ◽  
Information Disclosure ◽  
Common Law ◽  
Case Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Mental Capacity Act 2005 ◽  
Relevant Case ◽  
The Common ◽  
Mental Capacity Act

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.

Szasz, suicide, and medical ethics

Thomas Szasz ◽  
2019 ◽  
pp. 55-64
Author(s):  
George J. Annas
Keyword(s):  
Mental Illness ◽  
Informed Consent ◽  
Suicide Prevention ◽  
Assisted Suicide ◽  
Physician Assisted Suicide ◽  
The Subject ◽  
The Right ◽  
Suicidal Patients ◽  
Commit Suicide

Szasz objected to the medicalization of suicide, the legalization of suicide prevention, and especially the coercive role of psychiatry in this realm. He declared that, by medicalizing suicide, we banish the subject from discussion. What is meant by acceptable and unacceptable “suicide”? Who has a right to commit suicide? How does suicide implicate freedom? Does it reflect abortion jurisprudence? How do psychiatrists become suicide’s gatekeepers? Current phenomena (e.g., new physician-assisted suicide legislation) illuminate these and other issues (e.g., euthanasia, informed consent, informed refusal, the “right to die,”), all suggesting how Szasz would react to each. Suicide is legal, but is almost always considered a result of mental illness. Courts approve psychiatrists who want to commit “suicidal” patients involuntarily. Granting physicians prospective legal immunity for prescribing lethal drugs is, at best, a strange and tangential reaction to our inability to discuss suicide (and dying) rationally. Szasz got it right.

Whose Life is it Anyway? Life and Death in the Court of Protection

2018 ◽  
pp. 245-252
Author(s):  
Clementine Maddock
Keyword(s):  
Mental Health ◽  
New World ◽  
Mental Health Problems ◽  
Best Interests ◽  
Life And Death ◽  
Life Sustaining Treatment ◽  
Brave New World ◽  
Mental Capacity Act ◽  
Patient’S Will ◽  
Death Cases

Psychiatrists are entering a brave new world. Following the introduction of the Mental Capacity Act, there has been an increase in the number of decisions regarding refusal of life sustaining treatment being heard in the Court of Protection. Many of these cases involve patients with mental health problems. Although in some cases, such as those with anorexia, treatment can be given against a patient’s will under the Mental Health Act, the question has become whether we should continue to give treatment to a patient who is actively refusing and who has not benefited from treatment for this condition over the last 10 to 15 years. In other cases, patients are refusing life-sustaining treatment for conditions unrelated to a mental disorder, who are deemed to lack capacity to make that decision. This essay will consider how the courts are interpreting the ‘best interests’ doctrine in these life or death cases.

4. Consent to Treatment

2018 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Mental Capacity ◽  
Best Interests ◽  
Living Wills ◽  
Ethical Aspects ◽  
Capacity To Consent ◽  
Delicate Balance ◽  
Mental Capacity Act 2005 ◽  
Consent To Treatment ◽  
Advance Decisions ◽  
Mental Capacity Act

This chapter examines the legal and ethical aspects of treating a patient without consent. It considers the meaning of ‘consent’ and the position of patients who lack the capacity to consent. For children who lack capacity, consent involves a delicate balance between the rights of the children and those of their parents. For adults lacking capacity, the Mental Capacity Act 2005 has emphasized the ‘best interests’ test, but has largely left open the question of how a person’s best interests are to be ascertained. The chapter also considers what weight should be attached to advance decisions (sometimes called living wills).

Consent conundrums: patient consent in neuroscience nursing

2020 ◽  
Vol 16 (1) ◽  
pp. 48-52
Author(s):  
John Finch
Keyword(s):  
Mental Capacity ◽  
Court Decisions ◽  
Legal Problem ◽  
Neuroscience Nursing ◽  
Patient Consent ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
Mental Capacity Act ◽  
Pain Distress

In BJNN 15(4) and BJNN 15(5), John Finch looked in detail at the role of the Mental Capacity Act 2005 and its accompanying Code in the practice of neuroscience nurses. He concluded, as have others, that the guidance offered by the Act and the Code falls short of what neuroscience nurses need in their practice. In this article, he turns his attention to the treatment of patients who can and do consent to proposed treatment. The law relating to such patients in this matter offers neither an act nor a code. The law is to be found in court decisions. It might, at first sight, appear that a practice situation in which a patient with undoubted mental capacity or, at least, sufficient mental capacity to understand and accept what is proposed, presents no legal problem. But a closer examination of mental processes encountered in patients who may be in pain, distress and pressing need reveals that communication between the treater and the treated may be subtle and complex, and that the meeting of minds required in law to ensure that a patient has genuinely agreed to a detailed proposal is anything but simple.

Best interests provisions in the UK Mental Capacity Act 2005

2012 ◽  
Vol 36 (12) ◽  
pp. 459-462
Author(s):  
Olufunso B. Aribisala
Keyword(s):  
Decision Making ◽  
Mental Capacity ◽  
Best Interests ◽  
England And Wales ◽  
Reasonable Belief ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
The Uk

SummaryThe Mental Capacity Act 2005 is a critical statute law for psychiatrists in England and Wales. Its best interests provision is fundamental to substitute decision-making for incapacitated adults. It prescribes a process of and gives structure to substitute decision-making. The participation of the incapacitated adult must be encouraged where practicable. In addition to this, ‘the best interests checklist’ must be applied in every case before a practitioner can arrive at a reasonable belief that the action or decision taken on behalf of an incapacitated adult is in his best interests. Most commentators have shown goodwill towards the workings of the Act and want it to succeed.

The law relating to mental capacity and mental health

2013 ◽  
Author(s):  
Kay Wheat
Keyword(s):  
Mental Health ◽  
Mental Disorder ◽  
Health Care Professionals ◽  
Well Being ◽  
Mental Capacity ◽  
Best Interests ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
Mental Capacity Act

This chapter will examine two key areas of law relating to medical treatment and care of those with mental disorder. The question of decision-making capacity is important for health care professionals, and other carers and agents dealing with older people. The law relating to this is covered by the Mental Capacity Act 2005 supplemented by previous case law where this is still relevant, and the key aspect of the law is the ability to treat people without capacity in their best interests. However, in the case of some patients, it may be necessary to use the Mental Health Act 1983. This legislation is focussed, not on the capacity of the patient, but upon the effect that a mental disorder can have upon the patient risking damage to their own well-being, or to the well-being of others. The relationship between the two areas is not always clear.

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