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.

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 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.

Capacity assessment under the Mental Capacity Act 2005: Delivering on the functional approach?

Legal Studies ◽  
2009 ◽  
Vol 29 (3) ◽  
pp. 464-491 ◽  
Author(s):  
Mary Donnelly
Keyword(s):  
Functional Approach ◽  
Mental Capacity ◽  
Assessment Process ◽  
Fundamental Aspect ◽  
Capacity Assessment ◽  
Substantial Impact ◽  
Degree Of Protection ◽  
Practical Operation ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

A fundamental aspect of the Mental Capacity Act 2005 (MCA) is the statutory endorsement of a functional approach to capacity. In principle, this requires a separate assessment of capacity in respect of each decision to be made. Most capacity assessments take place at a non-judicial level, and, outside of day-to-day decisions, the most common assessors are likely to be healthcare professionals. This paper investigates the practical operation of the capacity assessment process at both judicial and non-judicial levels. It asks whether the process can deliver on the MCA's goal of preserving maximum decision-making freedom, while, at the same time, providing an appropriate degree of protection. It argues that assessors who are not legally trained encounter significant difficulties in carrying out the essentially legal task of assessing capacity. It also shows that assessors' values and biases, both professional and personal, are likely to impact on the conclusions reached. Having identified these difficulties, the paper considers their implications for the MCA's approach to capacity. It evaluates the attempts in the MCA itself to address assessors' limitations and argues that these will not have a substantial impact on the way in which capacity assessors operate. It considers other ways in which the quality of assessment could be improved and puts forward specific suggestions as to how greater assessor accountability can be delivered and increased rigour introduced to the capacity assessment process.

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.

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