scholarly journals Lasting powers of attorney: implications for clinicians

2012 ◽  
Vol 18 (3) ◽  
pp. 205-212 ◽  
Author(s):  
Martin Curtice ◽  
Isurima Katuwawela ◽  
Richard McCollum
Keyword(s):  
Case Law ◽  
Mental Capacity ◽  
Personal Health ◽  
England And Wales ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
Mental Capacity Act ◽  
First Time

SummaryIssues relating to capacity are increasingly topical and relevant, particularly following the implementation of the Mental Capacity Act 2005. Powers of attorney are one such issue that requires the assessment of capacity for their execution. This article focuses on lasting powers of attorney (LPAs), which were introduced under the Mental Capacity Act in 2007. We describe how LPAs evolved and how they have been used since the inception of the Act. We review salient case law. In doing so, we elucidate pertinent issues for clinicians, particularly in the case of health and welfare LPAs: for the first time in England and Wales, the law allows donors to nominate an attorney to make decisions about their personal health and welfare once they become incapacitated.

Is mental capacity in the eye of the beholder?

2017 ◽  
Vol 11 (2) ◽  
pp. 30-39 ◽  
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.

Fluctuating capacity: the concept of micro- and macro-decisions

2020 ◽  
Vol 26 (4) ◽  
pp. 238-244
Author(s):  
Martin Curtice
Keyword(s):  
Clinical Practice ◽  
Personality Disorder ◽  
Clinical Problem ◽  
Case Law ◽  
Mental Capacity ◽  
Routine Clinical Practice ◽  
Unique Case ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
First Time

SUMMARYThere is much Mental Capacity Act 2005 (MCA) case law emanating from the Court of Protection. This article reviews an important and unique case when the court specifically addressed for the first time the question of fluctuating capacity, a not uncommon clinical problem that can often be complex. It describes how the Court of Protection in Royal Borough of Greenwich v CDM [2019] legally approached an issue of fluctuating capacity in a 64-year-old woman with a personality disorder and chronic diabetes. In doing so it elucidates a new conceptual framework to apply when assessing fluctuating capacity in terms of considering micro- and macro-decisions which can be used in routine clinical practice.

scholarly journals Understanding community care law in England and Wales

2009 ◽  
Vol 15 (6) ◽  
pp. 428-433 ◽  
Author(s):  
Danny Allen
Keyword(s):  
Mental Health ◽  
Community Care ◽  
Mental Health Problems ◽  
Case Law ◽  
Mental Capacity ◽  
Care Provision ◽  
Care Programme ◽  
England And Wales ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

SummaryAlthough psychiatrists in England and Wales are generally familiar with the Mental Health Act 1983 and the Mental Capacity Act 2005, there is a body of law that is available to assist patients in the community with which they are generally less familiar. There are two main reasons for this. The first is that it is a rather confused amalgam of different statutes and case law affecting each other in ways that are less than clear. The other is that the care programme approach (CPA) was meant to cut through all this and make care provision straightforward. In fact, the latter has never been the case and community care law has always sat uneasily alongside the CPA, but in October 2008 the CPA was withdrawn from some patients with mental health problems. This article explains what is meant by community care law and how psychiatrists can use it to help their patients.

Depression and Civil Liability

2017 ◽  
Author(s):  
Charles Foster
Keyword(s):  
Mental Health ◽  
Civil Liability ◽  
Civil Procedure ◽  
Mental Capacity ◽  
England And Wales ◽  
Mental Capacity Act 2005 ◽  
Depressed Person ◽  
The Law ◽  
Mental Capacity Act

This chapter discusses the law in England and Wales relating to civil liability where people with depression are parties to litigation. It begins by considering how depression can truncate one’s capacity to conduct litigation. Where it does, and the person consequently ‘lacks capacity to conduct the proceedings’, litigation either for or against the depressed person has to be conducted through a ‘litigation friend’. No step in the litigation can occur unless a litigation friend has been appointed. In the Civil Procedure Rules, the term ‘lacks capacity’ is defined by reference to the Mental Capacity Act 2005. The chapter also examines the relevance of the mental health of parties to the litigation in a wide variety of claims, along with litigation against depressed people or in relation to damage caused by depressed people.

3. Consent

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.

Consent conundrums: patient consent in neuroscience nursing

2020 ◽  
Vol 16 (1) ◽  
pp. 48-52
Author(s):  
John Finch
Keyword(s):  
Mental Capacity ◽  
Court Decisions ◽  
Legal Problem ◽  
Neuroscience Nursing ◽  
Patient Consent ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
Mental Capacity Act ◽  
Pain Distress

In BJNN 15(4) and BJNN 15(5), John Finch looked in detail at the role of the Mental Capacity Act 2005 and its accompanying Code in the practice of neuroscience nurses. He concluded, as have others, that the guidance offered by the Act and the Code falls short of what neuroscience nurses need in their practice. In this article, he turns his attention to the treatment of patients who can and do consent to proposed treatment. The law relating to such patients in this matter offers neither an act nor a code. The law is to be found in court decisions. It might, at first sight, appear that a practice situation in which a patient with undoubted mental capacity or, at least, sufficient mental capacity to understand and accept what is proposed, presents no legal problem. But a closer examination of mental processes encountered in patients who may be in pain, distress and pressing need reveals that communication between the treater and the treated may be subtle and complex, and that the meeting of minds required in law to ensure that a patient has genuinely agreed to a detailed proposal is anything but simple.

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.

The law relating to mental capacity and mental health

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.

scholarly journals The Mental Capacity Act 2005 and its potential impact on the use of restraint

2008 ◽  
Vol 32 (4) ◽  
pp. 124-126 ◽  
Author(s):  
Arthur O. Owino
Keyword(s):  
Common Law ◽  
Mental Capacity ◽  
Best Interest ◽  
England And Wales ◽  
Time Section ◽  
Mental Capacity Act 2005 ◽  
The Common ◽  
Potential Impact ◽  
Care And Treatment ◽  
Mental Capacity Act

The staged implementation of the Mental Capacity Act 2005 (further referred to as the Act) began in April 2007 and was completed in October 2007. The Act provides a comprehensive statutory framework for making decisions for people in England and Wales, aged 16 years and over, who lack capacity to make a particular decision at a particular time. Section 5 of the Act codifies the common law doctrine of necessity and provides a defence to anyone who performs an act in connection with the care and treatment of another person – in that person's best interest – reasonably believed to lack capacity in that matter.

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