Mental capacity and decision-making

Disability Rights Movement ◽

Mental Capacity Act ◽

The Uk ◽

Legal Consequences

This chapter takes the reader through the elements that make up mental capacity and underpin, therefore, decision-making. The provisions of the Mental Capacity Act 2005 (MCA) are considered in some detail, but the laws governing other jurisdictions in the UK are mentioned. It discusses the legal consequences of incapacity, both for the older person concerned and others, are considered and broader principles (e.g. to do with best interests) governing the use of restraint, deprivation of liberty, and support for decision making. Finally, we turn our attention to how international human rights legislation, and the international disability rights movement generally, increasingly shape the legal approach to capacity and decision making in the UK. The chapter ends, therefore, by considering the UN Convention on the Rights of Persons with Disabilities and the compatibility of the MCA with its provisions.

Best interests provisions in the UK Mental Capacity Act 2005

The Psychiatrist ◽

10.1192/pb.bp.111.038273 ◽

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 ◽

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.

Statutory wills: Doing the right thing under the Mental Capacity Act 2005

BJPsych Advances ◽

10.1192/apt.bp.116.016022 ◽

2017 ◽

Vol 23 (1) ◽

pp. 54-62

Author(s):

Kathryn Milward ◽

Martin Curtice ◽

Rosie Harding

Keyword(s):

Decision Making ◽

Mental Capacity ◽

Best Interests ◽

Legal Cases ◽

Medical Practitioners ◽

Testamentary Capacity ◽

Application Procedure ◽

SummaryStatutory wills are made under the Mental Capacity Act 2005 (MCA) for persons who lack testamentary capacity. Mental health practitioners are likely to be familiar with many of the provisions of the MCA and the test for testamentary capacity. However, they may not have encountered statutory wills. This article explains the procedure for applying for a statutory will, including the role of medical practitioners. Salient legal cases are summarised to highlight the difficulties in applying a best interests framework for decision-making in the context of statutory wills. Finally, this article considers how the United Nations Convention on the Rights of Persons with Disabilities (CRPD) might affect not only on statutory wills, but also the wider provisions of the MCA.Learning Objectives• Be able to explain statutory wills and the application procedure to a patient or carer• Understand the differences between the test for testamentary capacity (as established inBanks v Goodfellow(1870)) and assessing capacity under the MCA• Appreciate how the CRPD might affect the decision-making process, not only for statutory wills but for all decisions made under the MCA

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

The Psychiatrist ◽

10.1192/pb.bp.111.036988 ◽

2012 ◽

Vol 36 (7) ◽

pp. 241-243 ◽

Cited By ~ 1

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 ◽

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.

Mental Capacity Act 2005: The Statutory Principles and Best Interests Test

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v1i13.177 ◽

2014 ◽

Vol 1 (13) ◽

pp. 150

Author(s):

Penny Letts

Keyword(s):

Decision Making ◽

Mental Capacity ◽

Best Interests ◽

Decision Making Process ◽

<p align="LEFT">The Mental Capacity Act 2005, due for implementation in 2007, will create a new statutory framework intended to improve and clarify the decision-making process for people aged 16 and over who are unable to make decisions for themselves. Section 1 of the Act sets out five statutory principles intended to underline the provisions of the Act and guide its implementation and operation. The first part of this paper will look at the origins of each of the statutory principles. The second part will consider one of the principles – acting in the best interests of a person lacking capacity – in greater detail by looking at the requirements set out in the Act for determining a person’s best interests.</p>

The early experience of Old Age Psychiatrists in the application of the Mental Capacity Act 2005: a pilot study

International Psychogeriatrics ◽

10.1017/s1041610209990202 ◽

2009 ◽

Vol 22 (1) ◽

pp. 147-157 ◽

Cited By ~ 9

Author(s):

Ajit Shah ◽

Natalie Banner ◽

Chris Heginbotham ◽

Bill Fulford

Keyword(s):

Decision Making ◽

Old Age ◽

Social Care ◽

Mental Capacity ◽

Best Interests ◽

Decision Making Capacity ◽

Old Age Psychiatry ◽

ABSTRACTBackground: The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 in England and Wales.Methods: A pilot questionnaire study examined the experience of consultants in Old Age Psychiatry in the early implementation of the MCA pertaining to local policy and training in the application of the MCA, the assessment of decision-making capacity, the determination of best interests, and the use of the least restrictive option and restraint.Results: Fifty-two (27%) of the 196 consultants in Old Age Psychiatry returned useable questionnaires. Seventy-five percent of them reported that local training on the application of the MCA was available, but less than 50% reported that training was mandatory. The vast majority of assessments of decision-making capacity were conducted by consultants in Old Age Psychiatry. Almost all of them reported using the four-fold specific test of decision-making capacity (DMC) described in the MCA. Restraint was reported to be rarely used.Conclusions: Consultants in Old Age Psychiatry generally reported using the criteria for the assessment of DMC, the determination of best interests and restraint described in the MCA. The findings highlight concern about the workload of clinicians in implementing the MCA and this requires careful monitoring. Consideration should be given to statutory provision of training in the application of the MCA by all healthcare and social care providers for all their healthcare and social care staff.

Mental capacity: Different models and their controversies

BJPsych Advances ◽

10.1192/apt.bp.116.016204 ◽

2017 ◽

Vol 23 (6) ◽

pp. 366-374 ◽

Cited By ~ 1

Author(s):

Brian Joseph Murray

Keyword(s):

Relevant Information ◽

Mental Capacity ◽

List Type ◽

Alternative Models ◽

United Nations Convention ◽

Mental Capacity Act ◽

The Uk ◽

The Impact

SummaryModern legislation in the UK addressing the issue of decision-making ability uses tests of mental capacity based on the individual's ability to understand relevant information given to them. Alternative models of mental capacity do exist, but are largely considered defunct. This article reviews these alternative models and considers their importance. Far from being irrelevant to modern views on mental capacity, these models have already been incorporated into legislation such as the Mental Capacity Act 2005. A better understanding of these models can improve clinicians’ understanding of mental capacity in general. Modern controversies such as the impact of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) are discussed and ways in which our understanding of mental capacity may have to change in the future are addressed.LEARNING OBJECTIVES•Appreciate the different ways of considering an individual's mental capacity•Understand the primacy and limitations of the functional test of mental capacity•Use this understanding to manage potential conflicts or disagreements when considering an individual's mental capacity

The Mental Capacity Act 2005 and decision-making: best interests

British Journal of Nursing ◽

10.12968/bjon.2007.16.19.27359 ◽

2007 ◽

Vol 16 (19) ◽

pp. 1208-1210 ◽

Cited By ~ 3

Author(s):

Bridgit Dimond

Keyword(s):

Decision Making ◽

Mental Capacity ◽

Best Interests ◽

‘Turning up the volume’: Increasing respect for the wishes and feelings of women with intellectual impairment in decisions about their reproductive rights in England and New Zealand

Medical Law International ◽

10.1177/09685332211044730 ◽

2021 ◽

pp. 096853322110447

Author(s):

Joanna M Manning

Keyword(s):

Decision Making ◽

New Zealand ◽

Case Law ◽

Best Interests ◽

Family Court ◽

Court Judge ◽

The Will ◽

In 2004 a New Zealand Family Court Judge ordered that two extremely serious and irreversible interventions (termination of pregnancy and sterilization) be carried out on a 29-year-old woman, with mild to moderate intellectual disability, over her strenuous objection. Though her appeal was partially successful, an option which both respected her wishes and feelings and in all likelihood better promoted her best interests was not explored. A decade later, another Family Court judge held that it was in the best interests of a young woman with Down syndrome to be sterilized for contraceptive purposes, in spite of her indication that she might wish to have babies one day. The decisions were made under NZ’s adult guardianship legislation, into which courts have incorporated a best interests principle, which they have interpreted broadly. But, in contrast to the Mental Capacity Act 2005 (MCA), NZ’s statute lacks any requirement for decision-makers to take into account the wishes and feelings of the person with mental impairment. That requirement has been the catalyst for a more-empathetic, person-centric interpretation in English case law. Further reform to the MCA is advocated for, which would give formal primacy to P’s wishes and feelings through presumptions or special phrases, as well as requiring a reasoned justification for departing from them. The Convention on the Rights of Persons with Disabilities goes even further: the article 12 right to legal capacity requires respect for the ‘will and preferences’ of people with mental impairments and controversially, according to the UN Committee’s interpretation, requires the replacement of substitute decision-making regimes based on best interests with supported decision-making frameworks based on a person’s will and preferences.

Capacity issues at the front door

British Journal of Hospital Medicine ◽

10.12968/hmed.2019.80.9.513 ◽

2019 ◽

Vol 80 (9) ◽

pp. 513-516

Author(s):

Peter Lepping

Keyword(s):

Decision Making ◽

Cognitive Impairment ◽

Decision Maker ◽

Acute Infection ◽

Mental Capacity ◽

Best Interests ◽

Decision Making Capacity ◽

Mental Capacity Act ◽

Psychiatric Problems

Decision-making capacity is often overestimated by clinicians. An average of one third of patients lack capacity to make complex decisions and clinicians should be alert to such a possibility. Cognitive impairment, acute infection, intoxication and other common medical and psychiatric problems can impair patients' capacity. The Mental Capacity Act 2005 has to be applied when treating patients who lack capacity. The main decision maker for a proposed treatment or investigation is responsible for assessing capacity. However, all clinicians have to consider and assess capacity, and act in a patient's best interests if he/she lacks capacity.

FROM BEST INTERESTS TO BETTER INTERESTS? VALUES, UNWISDOM AND OBJECTIVITY IN MENTAL CAPACITY LAW

The Cambridge Law Journal ◽

10.1017/s0008197321000283 ◽

2021 ◽

pp. 1-29

Author(s):

John Coggon ◽

Camillia Kong

Keyword(s):

Decision Making ◽

Mental Capacity ◽

Best Interests ◽

Philosophical Critique ◽

Parliamentary Debates ◽

Capacity Decisions ◽

Mental Capacity Act ◽

Personal Decision ◽

Made In

Abstract The Mental Capacity Act 2005 governs personal decision-making for adults. It incorporates five overarching principles, including that incapacity may not be inferred merely from a person's unwise decisions and that where a person lacks capacity decisions must be made in her best interests. Through analysis of judicial treatment of unwisdom, best interests, subjectivity and objectivity, considered against parliamentary debates on the Mental Capacity Bill and philosophical critique of ideas of (un)wisdom, we argue that these principles are problematically irreconcilable. The Act's radical under-specificity means, paradoxically, that this comes to be resolved through abstracted values, rather than the centricity of the person herself.