Medical treatment and best interests: judicial interpretation of values, wishes and beliefs under the Mental Capacity Act 2005

Purpose The prominence of the best interests principle in the Mental Capacity Act 2005 represented an important transition to a more resolutely patient-centred model regarding decision-making for incapable adults (“P”). This paper aims to examine the courts’ consideration of P’s values, wishes and beliefs in the context of medical treatment, reflect on whether this has resulted in a wide interpretation of the best interests standard and consider how this impacts clinical decision makers. Design/methodology/approach A particular focus will be on case law from the Court of Protection of England and Wales and the Supreme Court of the UK. Cases have been selected for discussion on the basis of the significance of their judgements for the field, the range of issues they illustrate and the extent of commentary and attention they have received in the literature. They are presented as a narrative review and are non-exhaustive. Findings With respect to values, wishes and beliefs, the best interests standard’s interpretation in the courts has been widely varied. Opposing tensions and thematic conflicts have emerged from this case law and were analysed from the perspective of the clinical decision maker. Originality/value This review illustrates the complexity and gravity of decisions of the clinical decision makers and the courts have considered in the context of best interests determinations for incapacitated adults undergoing medical treatment. Subsequent to the first such case before the Supreme Court of the UK, emerging case law trends relating to capacity legislation are considered.

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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.

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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.

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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.

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Is mental capacity in the eye of the beholder?

Advances in Mental Health and Intellectual Disabilities ◽

10.1108/amhid-11-2016-0035 ◽

2017 ◽

Vol 11 (2) ◽

pp. 30-39 ◽

Cited By ~ 4

Author(s):

Alex Ruck Keene

Keyword(s):

International Law ◽

Design Methodology ◽

Case Law ◽

Mental Capacity ◽

Persons With Disabilities ◽

England And Wales ◽

Content Type ◽

Mental Capacity Act 2005 ◽

Mental Capacity Act

Purpose The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity. Design/methodology/approach Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”). Findings It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Research limitations/implications It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgments based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Originality/value This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD.

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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 2005 ◽

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.

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The Supreme Court and deprivation of liberty: where are we now?

BJPsych Advances ◽

10.1192/apt.bp.114.014290 ◽

2015 ◽

Vol 21 (6) ◽

pp. 417-424

Author(s):

Nick Brindle

Keyword(s):

Supreme Court ◽

Social Care ◽

Case Law ◽

Legal Implications ◽

Health And Social Care ◽

The Supreme Court ◽

Mental Capacity Act 2005 ◽

Low Threshold ◽

Mental Capacity Act ◽

Acid Test

SummaryDeciding on where the tipping point between restrictions and deprivation arises in care settings has important legal implications, but until recently case law has not much helped to resolve these challenging issues. An important milestone has been the Supreme Court judgment in the so-called Cheshire West case. This judgment, handed down in March 2014, set a low threshold to apply (the ‘acid test’) in deciding when someone may be being deprived of their liberty and therefore that additional legal authorisation is required. The application of the acid test is not straightforward and its effects are wide-ranging. In this article, I discuss the evolution of the concept of deprivation of liberty in health and social care, the implications of the judgment and the application of the acid test. I also briefly highlight the interface between the Mental Capacity Act 2005 and the Mental Health Act 1983.

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Learning capacity- How professionals learn about mental capacity on post qualifying education programmes

The Journal of Practice Teaching and Learning ◽

10.1921/jpts.v17i3.1439 ◽

2021 ◽

Vol 17 (3) ◽

pp. 115-137

Author(s):

Jim Rogers ◽

Lucy Bright

Keyword(s):

Case Law ◽

Mental Capacity ◽

Best Interests ◽

Learning Capacity ◽

Codes Of Practice ◽

Mental Capacity Act 2005 ◽

Mental Capacity Act ◽

Key Aspects ◽

Vulnerable Adults

The focus of this paper is the way in which learning on a post graduate professional academic training module is developed and articulated via processes of shadowing and the production of two assignments (a written case study and a reflective piece). The context is learning about key aspects of Mental Capacity legislation and the data for the study came from work submitted by fifty students on four successive iterations of a 'best interests assessor' (BIA) training course in England. We sought evidence of the use of key elements including specific sections of the Mental Capacity Act 2005 (MCA) as well as case law; professional values; practice guidance; and classroom education. Moreover we were interested in the ways in which a brief shadowing of a practicing BIA helped to make sense of these disparate elements in practice. Practice guidanc from expert bodies such as SCIE and NICE, the formal legal test of capacity, and certain relevant pieces of case law were not referred to as much as expected, but most candidates showed the ability to deftly navigate the tensions and challenges which arise when trying to meld case law, statute law, codes of practice, and classroom learning and ensure that this is used to safeguard the rights of vulnerable adults.

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Mental capacity and decision-making

Oxford Textbook of Old Age Psychiatry ◽

10.1093/med/9780198807292.003.0052 ◽

2020 ◽

pp. 823-840

Author(s):

Charlotte Emmett ◽

Julian C Hughes

Keyword(s):

Decision Making ◽

Mental Capacity ◽

Best Interests ◽

Disability Rights ◽

Persons With Disabilities ◽

Disability Rights Movement ◽

Mental Capacity Act 2005 ◽

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.

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‘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 ◽

Persons With Disabilities ◽

Court Judge ◽

Mental Capacity Act 2005 ◽

The Will ◽

Mental Capacity Act

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.

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With and Without 'Best Interests': the Mental Capacity Act 2005, the Adults With Incapacity (Scotland) Act 2000 and constructing decisions

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v2016i22.549 ◽

2016 ◽

Vol 2016 (22) ◽

pp. 17

Author(s):

Alex Ruck Keene ◽

Adrian D Ward

Keyword(s):

Case Law ◽

Mental Capacity ◽

The Other ◽

Best Interests ◽

Persons With Disabilities ◽

The United Kingdom ◽

Mental Capacity Act 2005 ◽

Legislative Framework ◽

Mental Capacity Act ◽

Made In

This article compares the bases upon which actions are taken or decisions are made in relation to those considered to lack the material capacity in the Mental Capacity Act 2005 (‘MCA’) and the Adults with Incapacity (Scotland) Act 2000 (‘AWI’). Through a study of (1) the statutory provisions; and (2) the case-law decided under the two statutes, it addresses the question of whether the use of the term ‘best interests’ in the MCA and its – deliberate – absence from the AWI makes a material difference when comparing the two Acts. This question is of considerable importance when examining the compatibility of these legislative regimes in the United Kingdom with the Convention on the Rights of Persons with Disabilities (‘CRPD’). The article is written by two practising lawyers, one a Scottish solicitor, and one an English barrister. Each has sought to cast a critical eye over the legislative framework on the other side of the border between their two jurisdictions as well as over the framework (and jurisprudence) in their own jurisdiction. Its comparative analysis is not one that has previously been attempted; it shows that both jurisdictions are on their own journeys, although not ones with quite the direction that might be anticipated from a plain reading of the respective statutes.

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