Developing a Legal Framework for Advance Healthcare Planning: Comparing England & Wales and Ireland

2017 ◽  
Vol 24 (1) ◽  
pp. 67-84
Author(s):  
Mary Donnelly
Keyword(s):  
Decision Making ◽  
Legal Framework ◽  
Mental Capacity ◽  
Lessons Learned ◽  
Patient Choice ◽  
Healthcare Planning ◽  
Decision Making Capacity ◽  
Advance Healthcare Planning ◽  
Complete Form ◽  
Mental Capacity Act

This article examines the legislative frameworks for advance healthcare planning in England & Wales (the Mental Capacity Act 2005) and in Ireland (the Assisted Decision-Making (Capacity) Act 2015), undertaking a comparative analysis of each measure, with particular focus on the detail of the approaches taken. It is only through this kind of detailed focus that the normative choices made by legislation can fully be understood and evaluated. The article argues that, in several respects, possibly because the drafters were able to reflect lessons learned from other jurisdictions, the Assisted Decision-Making (Capacity) Act 2015 provides a more rounded and complete form of advance healthcare planning than that provided by the Mental Capacity Act. This is on the basis that it provides more protection for patient choice; better potential for delivery on the choices made; and a more appropriate balance between formalities and enforceability.

scholarly journals Unwell in hospital but not incapable: cross-sectional study on the dissociation of decision-making capacity for treatment and research in in-patients with schizophrenia and related psychoses

2018 ◽  
Vol 213 (2) ◽  
pp. 484-489 ◽  
Author(s):  
Benjamin Walter Jack Spencer ◽  
Tania Gergel ◽  
Matthew Hotopf ◽  
Gareth S. Owen
Keyword(s):  
Decision Making ◽  
Odds Ratio ◽  
Assessment Tool ◽  
Legal Framework ◽  
Cross Sectional Study ◽  
Competence Assessment ◽  
Sectional Study ◽  
Cross Sectional ◽  
Decision Making Capacity ◽  
Mental Capacity Act

BackgroundConsent to research with decision-making capacity for research (DMC-R) is normally a requirement for study participation. Although the symptoms of schizophrenia and related psychoses are known to affect decision-making capacity for treatment (DMC-T), we know little about their effect on DMC-R.AimsWe aimed to determine if DMC-R differs from DMC-T in proportion and associated symptoms in an in-patient sample of people with schizophrenia and related psychoses.MethodCross-sectional study of psychiatric in-patients admitted for assessment and/or treatment of schizophrenia and related psychoses. We measured DMC-R and DMC-T using ‘expert judgement’ clinical assessment guided by the MacArthur Competence Assessment Tool for Clinical Research, the MacArthur Competence Assessment Tool for Treatment and the legal framework of the Mental Capacity Act (2005), in addition to symptoms of psychosis.ResultsThere were 84 participants in the study. Half the participants had DMC-R (51%, 95% CI 40–62%) and a third had DMC-T (31%, 95% CI 21–43%) and this difference was statistically significant (P < 0.01). Thought disorder was most associated with lacking DMC-R (odds ratio 5.72, 95% CI 2.01–16.31, P = 0.001), whereas lack of insight was most associated with lacking DMC-T (odds ratio 26.34, 95% CI 3.60–192.66, P = 0.001). With the exception of improved education status and better DMC-R, there was no effect of sociodemographic variables on either DMC-R or DMC-T.ConclusionsWe have shown that even when severely unwell, people with schizophrenia and related psychoses in in-patient settings commonly retain DMC-R despite lacking DMC-T. Furthermore, different symptoms have different effects on decision-making abilities for different decisions. We should not view in-patient psychiatric settings as a research ‘no-go area’ and, where appropriate, should recruit in these settings.Declaration of interestNone.

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

2009 ◽  
Vol 22 (1) ◽  
pp. 147-157 ◽  
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 ◽  
Mental Capacity Act 2005 ◽  
Old Age Psychiatry ◽  
Mental Capacity Act

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.

scholarly journals Capacity issues at the front door

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 2005 ◽  
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.

scholarly journals Capacity in vacuo: An audit of decision-making capacity assessments in a liaison psychiatry service

2017 ◽  
Vol 41 (1) ◽  
pp. 7-11 ◽  
Author(s):  
Benjamin W. J. Spencer ◽  
Gareth Wilson ◽  
Ewa Okon-Rocha ◽  
Gareth S. Owen ◽  
Charlotte Wilson Jones
Keyword(s):  
Decision Making ◽  
Educational Intervention ◽  
Mental Capacity ◽  
Clinical Implications ◽  
Liaison Psychiatry ◽  
Factors Associated ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
Legal Model ◽  
Mental Capacity Act

Aims and methodWe aimed to audit the documentation of decision-making capacity (DMC) assessments by our liaison psychiatry service against the legal criteria set out in the Mental Capacity Act 2005. We audited 3 months split over a 2-year period occurring before, during and after an educational intervention to staff.ResultsThere were 21 assessments of DMC in month 1 (6.9% of all referrals), 27 (9.7%) in month 16, and 24 (6.6%) in month 21. Only during the intervention (month 16) did any meet our gold-standard (n = 2). Severity of consequences of the decision (odds ratio (OR) 24.4) and not agreeing to the intervention (OR = 21.8) were highly likely to result in lacking DMC.Clinical implicationsOur audit demonstrated that DMC assessments were infrequent and poorly documented, with no effect of our legally focused educational intervention demonstrated. Our findings of factors associated with the outcome of the assessment of DMC confirm the anecdotal beliefs in this area. Clinicians and service leads need to carefully consider how to make the legal model of DMC more meaningful to clinicians when striving to improve documentation of DMC assessments.

scholarly journals Applying decision-making capacity criteria in practice: A content analysis of court judgments

PLoS ONE ◽  
2021 ◽  
Vol 16 (2) ◽  
pp. e0246521
Author(s):  
Nuala B. Kane ◽  
Alex Ruck Keene ◽  
Gareth S. Owen ◽  
Scott Y. H. Kim
Keyword(s):  
Decision Making ◽  
Content Analysis ◽  
Qualitative Content Analysis ◽  
Functional Model ◽  
Mental Capacity ◽  
England And Wales ◽  
Decision Making Capacity ◽  
Mental Capacity Act ◽  
Court Of Appeal ◽  
Stable Preference

Background/Objectives Many jurisdictions use a functional model of capacity with similar legal criteria, but there is a lack of agreed understanding as to how to apply these criteria in practice. We aimed to develop a typology of capacity rationales to describe court practice in making capacity determinations and to guide professionals approaching capacity assessments. Methods We analysed all published cases from courts in England and Wales [Court of Protection (CoP) judgments, or Court of Appeal cases from the CoP] containing rationales for incapacity or intact capacity(n = 131). Qualitative content analysis was used to develop a typology of capacity rationales or abilities. Relationships between the typology and legal criteria for capacity [Mental Capacity Act (MCA)] and diagnoses were analysed. Results The typology had nine categories (reliability: kappa = 0.63): 1) to grasp information or concepts, 2) to imagine/ abstract, 3) to remember, 4) to appreciate, 5) to value/ care, 6) to think through the decision non-impulsively, 7) to reason, 8) to give coherent reasons, and 9) to express a stable preference. Rationales most frequently linked to MCA criterion ‘understand’ were ability to grasp information or concepts (43%) or to appreciate (42%), and to MCA criterion ‘use or weigh’ were abilities to appreciate (45%) or to reason (32%). Appreciation was the most frequently cited rationale across all diagnoses. Judges often used rationales without linking them specifically to any MCA criteria (42%). Conclusions A new typology of rationales could bridge the gap between legal criteria for decision-making capacity and phenomena encountered in practice, increase reliability and transparency of assessments, and provide targets for decision-making support.

Mental capacity and decision-making

2013 ◽  
Author(s):  
Julian C. Hughes ◽  
Christopher Heginbotham
Keyword(s):  
Decision Making ◽  
Conceptual Analysis ◽  
Mental Capacity ◽  
Best Interests ◽  
Human Beings ◽  
Basic Principles ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
The World ◽  
Mental Capacity Act

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.

Depression and Consent to Treatment

2017 ◽  
Author(s):  
Mary Donnelly
Keyword(s):  
Decision Making ◽  
Severe Depression ◽  
Legal Framework ◽  
Legal Standard ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
Consent To Treatment ◽  
Mental Capacity Act ◽  
Matthew Ratcliffe ◽  
Depressive Condition

This chapter examines the law’s approach to decision-making capacity in the context of severe depression, with particular emphasis on decisions in respect of treatment (both treatment for the depressive condition itself and for other conditions that are not directly linked). It draws on the work of Matthew Ratcliffe on experiences of depression to highlight difficulties in applying the legal standard for decision-making capacity in the Mental Capacity Act 2005 (MCA) to people with severe depression. The chapter explains how the law can address the limits of a capacity-based approach to consent to treatment and argues that an appropriate legal framework requires better engagement with the experiences of people living with depression. This framework should be grounded in recovery norms rather than autonomy/capacity norms—even if it recognizes that the two will overlap in many situations.

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