The law relating to mental capacity and mental health

The Law ◽

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.

The law relating to mental capacity and mental health

Oxford Textbook of Old Age Psychiatry ◽

10.1093/med/9780198807292.003.0058 ◽

2020 ◽

pp. 907-916

Author(s):

Kay Wheat

Keyword(s):

Mental Health ◽

Mental Disorder ◽

Health Care Professionals ◽

Mental Capacity ◽

Best Interests ◽

The Law ◽

Mental Capacity Act ◽

The Relationship

This chapter examines 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, as well as 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 focused, 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 wellbeing, or to the wellbeing of others. The relationship between the two areas is not always clear.

Safeguards for informal patients

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v0i20.248 ◽

2014 ◽

pp. 71

Author(s):

Aswini Weereratne

Keyword(s):

Mental Health ◽

Mental Disorder ◽

Residential Care ◽

Elderly Person ◽

Mental Capacity ◽

Best Interests ◽

Mental Health Act ◽

In light of the plethora of new provisions safeguarding patients who might previously have been cared for and treated informally, it may be instructive to consider who may now be considered a truly informal patient, i.e. one for whom neither process nor formality is needed. When applied to an incapacitated patient requiring treatment for mental disorder, the word “informal” may now seem oxymoronic and possibly redundant. Can such a patient ever be truly informal? Part IV of the model statute suggests that an informal patient is one who lacks capacity and does not object to proposed treatment which is in their best interests, or a patient who may be treated without the use of compulsory powers; but even such a patient must now be subject to some formality if their care or treatment is to be long term or they are to be deprived of their liberty in order to ensure proper safeguards are in place.Currently the boundary between the Mental Capacity Act 2005 (“MCA”) and Mental Health Act 1983 (“MHA”) is essentially one determined by whether the patient objects to treatment and is defined with formidable complexity in schedule 1A to the MCA. A patient eligible for MCA deprivation of liberty (“DOL”) safeguards, who could be an elderly person in long term residential care, is now subject to formal processes. There is little true informality for a patient lacking treatment capacity. It is questionable whether even a capacitated patient with mental disorder, who is by definition vulnerable, may be treated informally under the MHA4 if they feel suborned into consenting by the possibility of coercion. The terminology offers a slightly deceptive impression of a benign approach with concomitant levels of autonomy, but while it is appropriate to highlight a difference from compulsory process and keep formality to a minimum for the sake of informality, it is also important not to overplay formality in the name of safeguards. The latter appears to be the vice in which the MCA and MHA is now arguably gripped.

Best interests, mental capacity legislation and the UN Convention on the Rights of Persons with Disabilities

BJPsych Advances ◽

10.1192/apt.bp.114.012922 ◽

2015 ◽

Vol 21 (3) ◽

pp. 188-195 ◽

Cited By ~ 2

Author(s):

Brendan D. Kelly

Keyword(s):

Mental Health ◽

Northern Ireland ◽

United Nations ◽

Mental Disorder ◽

Mental Capacity ◽

Best Interests ◽

Persons With Disabilities ◽

United Nations Convention ◽

Summary‘Best interests' is a key principle of the Mental Capacity Act 2005 (England and Wales), Mental Capacity Bill (2014) (Northern Ireland) and Mental Health Act 2001 (Ireland), although there are currently proposals to remove ‘best interests' from Irish legislation. Legislation in Scotland refers to ‘benefit’ resulting from interventions. Judicious use of ‘best interests', in line with guidelines that prioritise the person's autonomy, will and preferences, is a powerful way to promote the values and rights that underpin the United Nations Convention on the Rights of Persons with Disabilities and to safeguard the dignity of individuals with mental disorder and/or reduced mental capacity.

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.

Depression and Civil Liability

10.1093/oso/9780198801900.003.0022 ◽

2017 ◽

Author(s):

Charles Foster

Keyword(s):

Mental Health ◽

Civil Liability ◽

Civil Procedure ◽

Mental Capacity ◽

England And Wales ◽

Depressed Person ◽

The Law ◽

This chapter discusses the law in England and Wales relating to civil liability where people with depression are parties to litigation. It begins by considering how depression can truncate one’s capacity to conduct litigation. Where it does, and the person consequently ‘lacks capacity to conduct the proceedings’, litigation either for or against the depressed person has to be conducted through a ‘litigation friend’. No step in the litigation can occur unless a litigation friend has been appointed. In the Civil Procedure Rules, the term ‘lacks capacity’ is defined by reference to the Mental Capacity Act 2005. The chapter also examines the relevance of the mental health of parties to the litigation in a wide variety of claims, along with litigation against depressed people or in relation to damage caused by depressed people.

Is childhood a disability? Using Mental Capacity Tribunals and the Deprivation of Liberty Safeguards to shield children's capacity to consent to and refuse medical treatment

Tizard Learning Disability Review ◽

10.1108/tldr-01-2014-0001 ◽

2014 ◽

Vol 19 (2) ◽

pp. 96-106 ◽

Cited By ~ 1

Author(s):

Robin Mackenzie ◽

John Watts

Keyword(s):

Mental Health ◽

Decision Making ◽

Medical Treatment ◽

Mental Health Treatment ◽

Mental Capacity ◽

Best Interests ◽

Legal Analysis ◽

Content Type ◽

The Law

Purpose – The purpose of this paper is to demonstrate that the common and statutory law governing children's capacity or competence to consent to and to refuse medical treatment is unsatisfactory and to suggest solutions. Design/methodology/approach – Critical legal analysis of the law on assessing minors’ decision-making capacity in relation to legal recognition of their consent to and refusal of medical treatment. Findings – Without legal mechanisms which protect both children and their rights, all children and young people are effectively disabled from exercising age and capacity-related autonomy and participation in decisions affecting their lives. Yet in English law, inconsistencies between legal and clinical measures of decision-making capacity, situations where compulsory medical or mental health treatment is lawful, and tensions between rights and duties associated with human rights, autonomy, best interests and protections for the vulnerable create difficulties for clinicians, lawyers and patients. Research limitations/implications – As the paper acknowledges in its recommendations, the views of stakeholders are needed to enrich and inform legal reforms in this area. Originality/value – The paper makes suggestions to amend the law and clinical practice which are original and far reaching. The paper suggests that in order to observe children's rights while protecting them appropriately, the Mental Capacity Act 2005 and Deprivations of Liberty Safeguards should be applied to minors. The paper recommends the establishment of Mental Capacity Tribunals, similar in nature and purpose to Mental Health Tribunals, to provide legal safeguards and mechanisms to foster the supported decision-making envisaged in recent United Nations Conventions.

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 ◽

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.

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 ◽

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.

A Pilot Study of the Early Experience of Consultant Psychiatrists in the Implementation of the Mental Capacity Act 2005: Local Policy and Training, Assessment of Capacity and Determination of Best Interests

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v0i19.251 ◽

2014 ◽

pp. 149 ◽

Cited By ~ 1

Author(s):

Ajit Shah ◽

Chris Heginbotham ◽

Bill Fulford ◽

Natalie Banner ◽

Karen Newbigging ◽

...

Keyword(s):

Learning Disability ◽

Mental Capacity ◽

Best Interests ◽

Local Policy ◽

England And Wales ◽

People With Dementia ◽

The Government ◽

The Mental Capacity Act 2005 (MCA) was partially implemented in April 2007 and fully implemented in October 2007 in England and Wales (with the exception of the Deprivation of Liberty Safeguards which were implemented in April 2009). The government estimated that up to 2 million adults in England and Wales may have issues concerning their decision-making capacity (henceforth ‘capacity’), and these will included 840,000 people with dementia, 145,000 people with severe learning disability, 1.2 million people with mild to moderate learning disability and 120,000 people with severe brain injury. Additionally, the prevalence of schizophrenia, mania and serious depression are 1%, 1% and 5% respectively, and some of these individuals may also lack capacity. Moreover, up to 6 million family and unpaid carers are estimated to provide care or treatment for individuals lacking capacity. Furthermore, many other people who do not lack capacity may use aspects of the MCA for future planning.

Mental capacity and decision-making

10.1093/med/9780199644957.003.0056 ◽

2013 ◽

Author(s):

Julian C. Hughes ◽

Christopher Heginbotham

Keyword(s):

Decision Making ◽

Conceptual Analysis ◽

Mental Capacity ◽

Best Interests ◽

Human Beings ◽

Basic Principles ◽

The World ◽

In this chapter we start by defining terms and approaches to the assessment of mental or decision-making capacity. We outline basic principles – from the Mental Capacity Act 2005 (MCA), which covers England and Wales, as well as from Scottish legislation –where the principles are relevant to other jurisdictions. More conceptual issues, for instance to do with values and best interests, soon emerge, especially in connection with life-sustaining decisions. We discuss advance directives and lasting powers of attorneyand various tests of capacity, along with safeguards in connection with research. We then provide some conceptual analysis of the notions of ‘capacity’ and ‘competence’. We hope to have demonstrated that capacity and decision-making are complex matters because they reflect deeper issues to do with our standing as situated human beings in the world.