Mental Capacity Act 2005

The Mental Capacity Act, which received Royal Assent in April 2005, will come into force in April 2007. The Act puts into statute the legality of interventions in relation to adults who lack capacity to make decisions on their own behalf. The aim of this paper is to outline the main features of the legislation and its impact on those health care professionals who provide care and treatment for incapacitated adults. The paper sets out the underlying ethical principles that govern interventions under the Act's powers and briefly explores the legal definition of incapacity and the process by which capacity is assessed. It looks at the governing notion of 'best interests' and at the legal indemnity provided by the Act for interventions that are in the best interests of an incapacitated adult. It contains sections on the Act's main innovations, including research involving incapacitated adults, lasting powers of attorney and the new Court of Protection. It also provides information on advance decisions to refuse treatment.

Download Full-text

4. Consent to Treatment

Medical Law and Ethics ◽

10.1093/he/9780198810605.003.0004 ◽

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).

Download Full-text

4. Consent to Treatment

Medical Law and Ethics ◽

10.1093/he/9780198846956.003.0004 ◽

2020 ◽

pp. 151-232

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).

Download Full-text

The rebirth of medical paternalism: An NHS Trust v Y

Journal of Medical Ethics ◽

10.1136/medethics-2018-105098 ◽

2018 ◽

Vol 45 (1) ◽

pp. 3-7 ◽

Cited By ~ 6

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.

Download Full-text

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

Medico-Legal Journal ◽

10.1177/0025817217749521 ◽

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.

Download Full-text

3. Consent

10.1093/he/9780198871354.003.0003 ◽

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.

Download Full-text

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 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.

Download Full-text

The law relating to mental capacity and mental health

10.1093/med/9780199644957.003.0063 ◽

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.

Download Full-text