scholarly journals Making healthcare decisions in a person’s best interests when they lack capacity: clinical guidance based on a review of evidence

2019 ◽  
Vol 33 (10) ◽  
pp. 1571-1585 ◽  
Author(s):  
Derick T Wade ◽  
Celia Kitzinger
Keyword(s):  
Decision Making ◽  
Decision Maker ◽  
Medical Condition ◽  
Legal Framework ◽  
Mental Capacity ◽  
Best Interests ◽  
Power Of Attorney ◽  
England And Wales ◽  
Mandatory Training ◽  
Mental Capacity Act

Objective: To clarify the concept of best interests, setting out how they should be ascertained and used to make healthcare decisions for patients who lack the mental capacity to make decisions. Context: The legal framework is the Mental Capacity Act (MCA) 2005, which applies to England and Wales. Theory: Unless there is a valid and applicable Advance Decision, an appointed decision-maker needs to decide for those without capacity. This may be someone appointed by the patient through a Lasting Power of Attorney, or a Deputy appointed by the court. Otherwise the decision-maker is usually the responsible clinician. Different approaches exist to surrogate decision-making cross-nationally. In England and Wales, decision-making is governed by the MCA 2005, which uses a person-centred, flexible best interests (substituted interests) approach. Observations: The MCA is often not followed in healthcare settings, despite widespread mandatory training. The possible reasons include its focus on single decisions, when multiple decisions are made daily, the potential time involved and lack of clarity about who is the responsible decision-maker. Solution: One solution is to decide a strategic policy to cover more significant (usually health-related) decisions and to separate these from day-to-day relational decisions covering care and activities. Once persistent lack of capacity is confirmed, an early meeting should be arranged with family and friends, to start a process of sharing information about the patient’s medical condition and their values, wishes, feelings and beliefs with a view to making timely treatment decisions in the patient’s best interests.

Best interests provisions in the UK Mental Capacity Act 2005

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.

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.

Assessing capacity and decision-making

2020 ◽  
pp. 297-306
Author(s):  
Thomas McGowan ◽  
Adrian Blundell
Keyword(s):  
Decision Making ◽  
Mental Capacity ◽  
Best Interests ◽  
Capacity Assessment ◽  
Power Of Attorney ◽  
Case Vignettes ◽  
Advance Care ◽  
Mental Capacity Act ◽  
Cognitive Problems ◽  
Common Situation

This chapter, ‘Assessing capacity and decision-making’, explores mental capacity and the practical, legal, and ethical components of this common situation; the MCA (Mental Capacity Act) and its five statutory principles: the stages of capacity assessment; assessment of capacity in the context of cognitive problems; making decision for patients lacking capacity; determining patient’s best interests. Determining a patient’s best interests is often a complex area, and one in which family and friends can be uniquely placed to help you make this judgement. However, the relatives’ views have no legal standing in English law, and the decision must be made by the responsible professionals. With the help of excellent case vignettes, this chapter describes advance care planning, lasting power of attorney, IMCA (independent mental capacity advocate), DOLS (deprivation of liberty safeguards), The Court of Protection, and the implications of mental capacity on medical research.

scholarly journals Broad concepts and messy realities: optimising the application of mental capacity criteria

2021 ◽  
pp. medethics-2021-107571
Author(s):  
Scott Y H Kim ◽  
Nuala B Kane ◽  
Alexander Ruck Keene ◽  
Gareth S Owen
Keyword(s):  
Decision Making ◽  
Clinical Research ◽  
Functional Capacity ◽  
Functional Model ◽  
Relevant Information ◽  
Mental Capacity ◽  
Capacity Assessment ◽  
Diverse Range ◽  
England And Wales ◽  
Mental Capacity Act

Most jurisdictions require that a mental capacity assessment be conducted using a functional model whose definition includes several abilities. In England and Wales and in increasing number of countries, the law requires a person be able to understand, to retain, to use or weigh relevant information and to communicate one’s decision. But interpreting and applying broad and vague criteria, such as the ability ‘to use or weigh’ to a diverse range of presentations is challenging. By examining actual court judgements of capacity, we previously developed a descriptive typology of justifications (rationales) used in the application of the Mental Capacity Act (MCA) criteria. We here critically optimise this typology by showing how clear definitions—and thus boundaries—between the criteria can be achieved if the ‘understanding’ criterion is used narrowly and the multiple rationales that fall under the ability to ‘use or weigh’ are specifically enumerated in practice. Such a typology-aided practice, in theory, could make functional capacity assessments more transparent, accountable, reliable and valid. It may also help to create targeted supports for decision making by the vulnerable. We also discuss how the typology could evolve legally and scientifically, and how it lays the groundwork for clinical research on the abilities enumerated by the MCA.

scholarly journals The Mental Capacity Act and mental healthcare in prison: opportunities and challenges

2012 ◽  
Vol 36 (7) ◽  
pp. 241-243 ◽  
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.

scholarly journals Mental Capacity Act 2005: The Statutory Principles and Best Interests Test

2014 ◽  
Vol 1 (13) ◽  
pp. 150
Author(s):  
Penny Letts
Keyword(s):  
Decision Making ◽  
Mental Capacity ◽  
Best Interests ◽  
Decision Making Process ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

<p align="LEFT">The Mental Capacity Act 2005, due for implementation in 2007, will create a new statutory framework intended to improve and clarify the decision-making process for people aged 16 and over who are unable to make decisions for themselves. Section 1 of the Act sets out five statutory principles intended to underline the provisions of the Act and guide its implementation and operation. The first part of this paper will look at the origins of each of the statutory principles. The second part will consider one of the principles – acting in the best interests of a person lacking capacity – in greater detail by looking at the requirements set out in the Act for determining a person’s best interests.</p>

The law in England and Wales on mental health treatment in the community

2017 ◽  
Author(s):  
Jo Beswick ◽  
Michael Gunn
Keyword(s):  
Mental Health ◽  
Mental Health Treatment ◽  
Legal Framework ◽  
Mental Capacity ◽  
Community Treatment ◽  
England And Wales ◽  
Mentally Disordered ◽  
Mental Capacity Act 2005 ◽  
Mentally Disordered Offender ◽  
Mental Capacity Act

This chapter examines the legal framework for the treatment of the mentally disordered offender in the community in England and Wales. It examines both some of the ideological questions underlying the care of this group and the legal mechanisms within which treatment can be provided. The chapter begins by examining the principle, endorsed by the Mental Capacity Act 2005, that voluntary treatment will usually be the norm, regardless of setting. It then considers exceptions to these norm situations where legally mandated treatment in the community is permitted. In England and Wales, most of these exceptions are to be found in three pieces of legislation: the Mental Health Act 1983, as amended in 2007 to include community treatment orders; the Mental Capacity Act 2005, with its associated Deprivation of Liberty Safeguards (DOLS); and the Criminal Justice Act 2003.

Miscellaneous

2019 ◽  
pp. 865-902
Keyword(s):  
Palliative Medicine ◽  
Legal Framework ◽  
Mental Capacity ◽  
Ethical Framework ◽  
Standards Of Care ◽  
Power Of Attorney ◽  
Medical Litigation ◽  
Mental Capacity Act ◽  
Difficult Situations ◽  
Selection Of

This chapter describes covers the legal and professional standards of care required in palliative medicine, including the Mental Capacity Act, lasting power of attorney, and restraint or deprivation of liberty. Medicine frequently poses complex situations that as clinicians can challenge our understanding of the legal and ethical framework we work within. The legal framework is structured to protect patients and doctors, and provide guidance in dealing with what can sometimes be unclear and difficult situations. In addition, doctors, like all other healthcare professionals, work in an increasingly litigious and legally regulated environment. Sadly, for both patients and doctors, at times a simple failure by doctors to appreciate the nature and extent of their legal and professional responsibilities can lead to significant medico-legal problems. Furthermore, clinical negligence is covered, including landmark cases in medical litigation. The process for death certification and referral to the coroner is covered, and fitness to drive DVLA requirements are explained. Plans for travelling abroad during the end of life, donor requirements, and a selection of useful resources for patients and laboratory reference values are included.

scholarly journals Capacity and Consent in England and Wales: The Mental Capacity Act under Scrutiny

2010 ◽  
Vol 19 (3) ◽  
pp. 344-352 ◽  
Author(s):  
PETER HERISSONE-KELLY
Keyword(s):  
Mental Health ◽  
Learning Disabilities ◽  
Mental Health Problems ◽  
Legal Framework ◽  
Mental Capacity ◽  
Decision Makers ◽  
England And Wales ◽  
Mental Capacity Act 2005 ◽  
Advance Decisions ◽  
Mental Capacity Act

The Mental Capacity Act 2005 came into force in England and Wales in 2007. Its primary purpose is to provide “a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves.” Examples of such people are those with dementia, learning disabilities, mental health problems, and so on. The Act also gives those who currently have capacity a legal framework within which they can make arrangements for a time when they may come to lack it. Toward this end, it allows for them to make advance decisions (in effect, refusals of consent to certain forms of treatment) or to appoint proxy decision makers with lasting powers of attorney.

scholarly journals Mental capacity and psychiatric in-patients: implications for the new mental health law in England and Wales

2009 ◽  
Vol 195 (3) ◽  
pp. 257-263 ◽  
Author(s):  
Gareth S. Owen ◽  
George Szmukler ◽  
Genevra Richardson ◽  
Anthony S. David ◽  
Peter Hayward ◽  
...  
Keyword(s):  
Mental Health ◽  
Assessment Tool ◽  
Structured Interview ◽  
Cross Sectional Study ◽  
Mental Capacity ◽  
Best Interests ◽  
Cross Sectional ◽  
England And Wales ◽  
Mental Health Act ◽  
Mental Capacity Act

BackgroundIn England and Wales mental health services need to take account of the Mental Capacity Act 2005 and the Mental Health Act 1983. The overlap between these two causes dilemmas for clinicians.AimsTo describe the frequency and characteristics of patients who fall into two potentially anomalous groups: those who are not detained but lack mental capacity; and those who are detained but have mental capacity.MethodCross-sectional study of 200 patients admitted to psychiatric wards. We assessed mental capacity using a semi-structured interview, the MacArthur Competence Assessment Tool for Treatment (MacCAT–T).ResultsOf the in-patient sample, 24% were informal but lacked capacity: these patients felt more coerced and had greater levels of treatment refusal than informal participants with capacity. People detained under the Mental Health Act with capacity comprised a small group (6%) that was hard to characterise.ConclusionsOur data suggest that psychiatrists in England and Wales need to take account of the Mental Capacity Act, and in particular best interests judgments and deprivation of liberty safeguards, more explicitly than is perhaps currently the case.

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