Powers of Attorney and ‘Lack of Capacity’ under the Mental Capacity Act 2005: A Narrowing of the s 44 Offence? R v Kurtz [2018] EWCA Crim 2743

2019 ◽  
Vol 84 (1) ◽  
pp. 74-82
Author(s):  
John Taggart
Keyword(s):  
Turning Point ◽  
Mental Capacity ◽  
Criminal Offence ◽  
Power Of Attorney ◽  
Mental Capacity Act 2005 ◽  
Criminal Charge ◽  
Mental Capacity Act ◽  
The Individual ◽  
Court Of Appeal ◽  
Real Challenge

The Mental Capacity Act (MCA) 2005 marked a turning point in the statutory rights of people who may lack capacity. The legislation sought to place the individual at the centre of decision-making and was viewed as having the potential to give people a voice and an opportunity to be heard. Section 44 of the legislation introduced a criminal offence of ‘ill treatment or neglect’ of a person who lacks capacity. The maximum sentence of five years’ imprisonment (or a fine or both) was intended to underly the seriousness of the offence, especially considering the vulnerability of potential victims. Interpreting s 44 has, however, proved a real challenge and the courts have acknowledged the difficulties which its drafting presents. The recent Court of Appeal (COA) decision in R v Kurtz is illustrative of the kind of issue that the statute has generated. The court was tasked with deciding whether proving a lack of capacity on the part of the victim is required when the donee of a power of attorney is charged with the offence under s 44(1)(b). This article considers Kurtz within the context of the MCA 2005 and notes three related COA decisions. It examines what impact Kurtz may have on future prosecutions brought under s 44(1)(b) and considers the future of the s 44 criminal charge more generally.

Re: AB (Termination of Pregnancy) [2019] EWCA CIV 1215: ‘Wishes and Feelings’ Under the Mental Capacity Act 2005

2020 ◽  
Vol 28 (3) ◽  
pp. 605-614
Author(s):  
Lisa Cherkassky
Keyword(s):  
Mental Disorder ◽  
Living Arrangements ◽  
Common Law ◽  
Pregnant Patient ◽  
Mental Capacity ◽  
Termination Of Pregnancy ◽  
Mental Capacity Act 2005 ◽  
The Future ◽  
Mental Capacity Act ◽  
Court Of Appeal

Abstract In Re: AB (Termination of Pregnancy), the Court of Appeal was asked to consider an assumption made about the future living arrangements of a pregnant patient, and the weight to be ascribed to her wishes and feelings when she had no real understanding of her predicament. This commentary explores the importance of taking into account the perspective of the patient, even if suffering from a mental disorder, and it will analyse the existing common law to show that the weaker the ability of the patient to form her own wishes and feelings, the more appropriate it would be to rely on the remaining evidence.

A Local Authority v JB [2020] Ewca Civ 735 And A Local Authority v AW [2020] Ewcop 24: Rethinking Sexual Capacity?

2020 ◽  
Author(s):  
Laura Pritchard-Jones
Keyword(s):  
Decision Making ◽  
Local Authority ◽  
Mental Capacity ◽  
Sexual Relationships ◽  
Working Through ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
Court Of Appeal ◽  
The Way

Abstract In A Local Authority v JB and A Local Authority v AW, the Court of Appeal and Court of Protection, respectively, had to consider questions regarding decision-making about sexual relationships. This case commentary suggests that both decisions are to be welcomed in many ways, not least in the primacy they give to the role of consent within sexual relationships. However, working through their implications also reveals a number of perplexing legal and practical binds that cannot easily be overcome, and that in fact stem from the way that the Mental Capacity Act 2005 itself works. In light of this, the commentary concludes by suggesting that it is likely that there will be continued dissatisfaction with this area of law and hints that the time may have come to rethink sexual capacity.

Mental Capacity Act 2005

2021 ◽  
pp. 323-338
Author(s):  
Anna Smajdor ◽  
Jonathan Herring ◽  
Robert Wheeler
Keyword(s):  
Attorney General ◽  
Mental Capacity ◽  
Best Interests ◽  
Power Of Attorney ◽  
Advanced Directives ◽  
Life Saving ◽  
Mental Capacity Act 2005 ◽  
Advance Decisions ◽  
Definition Of ◽  
Mental Capacity Act

This chapter covers the Mental Health Act 2005 and includes topics on The Core Test for Mental Capacity, The Obligation to Assist a Person to Gain Capacity, The Best Interests Assessment when a Patient Lacks Capacity, Non-Discrimination in Best Interests Assessment, Derivation of Liberty: General Principles, Derivation of Liberty: Life-Saving Treatment, Protection for Those Wrongly Assessing Capacity Or Best Interests, Definition of a Lasting Power of Attorney, General provisions on advanced directives, Effect of an advance decision, The Effect of Advance Decisions, Things that the Mental Capacity Act cannot authorise, and Authorising of Deprivation of Liberty.

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.

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