scholarly journals Best interests, mental capacity legislation and the UN Convention on the Rights of Persons with Disabilities

2015 ◽  
Vol 21 (3) ◽  
pp. 188-195 ◽  
Author(s):  
Brendan D. Kelly
Keyword(s):  
Mental Health ◽  
Northern Ireland ◽  
United Nations ◽  
Mental Disorder ◽  
Mental Capacity ◽  
Best Interests ◽  
Persons With Disabilities ◽  
Mental Capacity Act 2005 ◽  
United Nations Convention ◽  
Mental Capacity Act

Summary‘Best interests' is a key principle of the Mental Capacity Act 2005 (England and Wales), Mental Capacity Bill (2014) (Northern Ireland) and Mental Health Act 2001 (Ireland), although there are currently proposals to remove ‘best interests' from Irish legislation. Legislation in Scotland refers to ‘benefit’ resulting from interventions. Judicious use of ‘best interests', in line with guidelines that prioritise the person's autonomy, will and preferences, is a powerful way to promote the values and rights that underpin the United Nations Convention on the Rights of Persons with Disabilities and to safeguard the dignity of individuals with mental disorder and/or reduced mental capacity.

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.

The law relating to mental capacity and mental health

2020 ◽  
pp. 907-916
Author(s):  
Kay Wheat
Keyword(s):  
Mental Health ◽  
Mental Disorder ◽  
Health Care Professionals ◽  
Mental Capacity ◽  
Best Interests ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
Mental Capacity Act ◽  
The Relationship

This chapter examines 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, as well as 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 focused, 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 wellbeing, or to the wellbeing of others. The relationship between the two areas is not always clear.

scholarly journals Safeguards for informal patients

2014 ◽  
pp. 71
Author(s):  
Aswini Weereratne
Keyword(s):  
Mental Health ◽  
Mental Disorder ◽  
Residential Care ◽  
Elderly Person ◽  
Mental Capacity ◽  
Best Interests ◽  
Mental Health Act ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

<p>In light of the plethora of new provisions safeguarding patients who might previously have been cared for and treated informally, it may be instructive to consider who may now be considered a truly informal patient, i.e. one for whom neither process nor formality is needed. When applied to an incapacitated<br />patient requiring treatment for mental disorder, the word “informal” may now seem oxymoronic and possibly redundant. Can such a patient ever be truly informal? Part IV of the model statute suggests that an informal patient is one who lacks capacity and does not object to proposed treatment which is in their best interests, or a patient who may be treated without the use of compulsory powers; but even such a patient must now be subject to some formality if their care or treatment is to be long term or they are to be deprived of their liberty in order to ensure proper safeguards are in place.</p><p>Currently the boundary between the Mental Capacity Act 2005 (“MCA”) and Mental Health Act 1983 (“MHA”) is essentially one determined by whether the patient objects to treatment and is defined with formidable complexity in schedule 1A to the MCA. A patient eligible for MCA deprivation of liberty (“DOL”) safeguards, who could be an elderly person in long term residential care, is now subject to formal<br />processes. There is little true informality for a patient lacking treatment capacity. It is questionable whether even a capacitated patient with mental disorder, who is by definition vulnerable, may be treated informally under the MHA4 if they feel suborned into consenting by the possibility of coercion. The terminology offers a slightly deceptive impression of a benign approach with concomitant levels of<br />autonomy, but while it is appropriate to highlight a difference from compulsory process and keep formality to a minimum for the sake of informality, it is also important not to overplay formality in the name of safeguards. The latter appears to be the vice in which the MCA and MHA is now arguably gripped.</p>

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: Different models and their controversies

2017 ◽  
Vol 23 (6) ◽  
pp. 366-374 ◽  
Author(s):  
Brian Joseph Murray
Keyword(s):  
Relevant Information ◽  
Mental Capacity ◽  
List Type ◽  
Persons With Disabilities ◽  
Alternative Models ◽  
Mental Capacity Act 2005 ◽  
United Nations Convention ◽  
Mental Capacity Act ◽  
The Uk ◽  
The Impact

SummaryModern legislation in the UK addressing the issue of decision-making ability uses tests of mental capacity based on the individual's ability to understand relevant information given to them. Alternative models of mental capacity do exist, but are largely considered defunct. This article reviews these alternative models and considers their importance. Far from being irrelevant to modern views on mental capacity, these models have already been incorporated into legislation such as the Mental Capacity Act 2005. A better understanding of these models can improve clinicians’ understanding of mental capacity in general. Modern controversies such as the impact of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) are discussed and ways in which our understanding of mental capacity may have to change in the future are addressed.LEARNING OBJECTIVES•Appreciate the different ways of considering an individual's mental capacity•Understand the primacy and limitations of the functional test of mental capacity•Use this understanding to manage potential conflicts or disagreements when considering an individual's mental capacity

scholarly journals Mental Capacity Act (Northern Ireland) 2016

2017 ◽  
Vol 41 (6) ◽  
pp. 353-357 ◽  
Author(s):  
Gerard Lynch ◽  
Catherine Taggart ◽  
Philip Campbell
Keyword(s):  
Mental Health ◽  
Northern Ireland ◽  
Mental Healthcare ◽  
Mental Capacity ◽  
Best Interests ◽  
Health And Social Care ◽  
Legislative Framework ◽  
Mental Capacity Act ◽  
The Uk ◽  
Health Legislation

SummaryMental health legislation in Northern Ireland has always been separate from legislation in the rest of the UK; the Mental Health (Northern Ireland) Order (MHO) had been in place since 1986. In common with other jurisdictions, this legislation utilises the presence of mental disorder and risk as criteria for detention and involuntary treatment. The MHO has been replaced by the Mental Capacity Act (Northern Ireland) 2016 (MCA), an example of ‘fusion’ legislation in which impairment of decision-making capacity and best interests are the only criteria to be used when making decisions across health and social care. In this paper, we outline the development of the MCA to date, and discuss its potential to improve mental healthcare by placing the treatment of mental illness within the same legislative framework as physical illnesses.

Mental capacity and decision-making

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.

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

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

<p>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’).</p><p><br />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.</p>

scholarly journals Statutory wills: Doing the right thing under the Mental Capacity Act 2005

2017 ◽  
Vol 23 (1) ◽  
pp. 54-62
Author(s):  
Kathryn Milward ◽  
Martin Curtice ◽  
Rosie Harding
Keyword(s):  
Decision Making ◽  
Mental Capacity ◽  
Best Interests ◽  
Legal Cases ◽  
Persons With Disabilities ◽  
Medical Practitioners ◽  
Testamentary Capacity ◽  
Application Procedure ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

SummaryStatutory wills are made under the Mental Capacity Act 2005 (MCA) for persons who lack testamentary capacity. Mental health practitioners are likely to be familiar with many of the provisions of the MCA and the test for testamentary capacity. However, they may not have encountered statutory wills. This article explains the procedure for applying for a statutory will, including the role of medical practitioners. Salient legal cases are summarised to highlight the difficulties in applying a best interests framework for decision-making in the context of statutory wills. Finally, this article considers how the United Nations Convention on the Rights of Persons with Disabilities (CRPD) might affect not only on statutory wills, but also the wider provisions of the MCA.Learning Objectives• Be able to explain statutory wills and the application procedure to a patient or carer• Understand the differences between the test for testamentary capacity (as established inBanks v Goodfellow(1870)) and assessing capacity under the MCA• Appreciate how the CRPD might affect the decision-making process, not only for statutory wills but for all decisions made under the MCA

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