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.

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.

scholarly journals Transfer to hospital under the Mental Capacity Act 2005

2009 ◽  
Vol 33 (12) ◽  
pp. 465-467
Author(s):  
Clare Stephenson ◽  
Robert Baskind ◽  
Christopher Harris
Keyword(s):  
Common Law ◽  
Mental Capacity ◽  
Fractured Neck Of Femur ◽  
Neck Of Femur ◽  
Physical Conditions ◽  
Mental Capacity Act 2005 ◽  
The Common ◽  
The Government ◽  
Mental Capacity Act ◽  
Legal Grounds

SummaryThis paper presents the case of an elderly gentleman who sustained a fractured neck of femur following a fall at home but refused to go to hospital. His general practitioner determined that he lacked capacity but ambulance and police crews refused to escort him due to concerns regarding deprivation of liberty.The legal grounds for treating people who lack capacity in emergencies are discussed and the development of the common law into the Mental Capacity Act 2005 is demonstrated. the Mental Health Act 1983 is inappropriate to treat primarily physical conditions, whereas deprivation of liberty cannot be authorised by the Mental Capacity Act 2005 without a means of challenging the lawfulness of the detention. In response, the government has produced Deprivation of Liberty Safeguards, which came into force in April 2009.

3. Consent

2018 ◽  
Author(s):  
Jo Samanta ◽  
Ash Samanta
Keyword(s):  
Public Policy ◽  
Information Disclosure ◽  
Common Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Court Cases ◽  
Essential Information ◽  
Mental Capacity Act 2005 ◽  
The Common ◽  
Mental Capacity Act

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. 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. 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 court cases, including Gillick, which gave rise to the concept, are cited where appropriate.

The Mental Capacity Act 2005: Relevance for the Surgeon

2009 ◽  
Vol 91 (5) ◽  
pp. 176-179
Author(s):  
SS Jameson ◽  
UK Amarasuriya ◽  
H Vint ◽  
MR Reed
Keyword(s):  
Surgical Treatment ◽  
Emergency Surgery ◽  
Common Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Surgical Team ◽  
England And Wales ◽  
The Past ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

Patients who lack the capacity to make decisions regarding surgical treatment are complex to manage. In the past, under common law in England and Wales, these patients underwent emergency surgery if in the patient's 'best interests,' as decided by the surgical team. Surgeons in England and Wales now need to understand the changes introduced in October 2007 by the Mental Capacity Act 2005 (MCA).

scholarly journals The Mental Capacity Act 2005, the Mental Health Act 1983, and the Common Law

2014 ◽  
Vol 1 (13) ◽  
pp. 163
Author(s):  
Phil Fennell
Keyword(s):  
Mental Health ◽  
Common Law ◽  
Institutional Care ◽  
Mental Capacity ◽  
Bodily Integrity ◽  
Mental Health Act ◽  
European Court ◽  
Mental Capacity Act 2005 ◽  
The Common ◽  
Mental Capacity Act

<p align="LEFT">This paper considers what has come to be known as the ‘interface’ between the Mental Capacity Act 2005 and the Mental Health Act 1983. Until the 2005 Act comes into force in 2007, practitioners will have to be aware of the interface between powers to admit to institutional care and treat without consent under common law and those which exist under the Mental Health Act 1983.</p><p align="LEFT">In simple terms, the interface question is ‘When may the common law or, after 2007, the 2005 Act, be used to admit to institutional care and treat without consent, and when will use of the Mental Health Act be required?’ This article argues that there are two decisions of the European Court which need to be considered in determining how to bridge what has become the “Bournewood gap”: <em>HL v United Kingdom</em> and <em>Storck v Germany</em>. These will require that the State must provide effective supervisory mechanisms to ensure that mentally incapacitated people are not deprived of their liberty (Article 5) and do not have their right of bodily integrity interfered with (Article 8) without lawful authority.</p>

scholarly journals The Deprivation of Liberty Safeguards – essential protection or bureaucratic monster?

2014 ◽  
pp. 117
Author(s):  
Roger Hargreaves
Keyword(s):  
Mental Health ◽  
Common Law ◽  
Mental Capacity ◽  
Final Decision ◽  
Total Absence ◽  
European Court ◽  
Mental Capacity Act 2005 ◽  
Consent To Treatment ◽  
The Common ◽  
Mental Capacity Act

The Deprivation of Liberty Safeguards ( DoLS), which came into force on the first of April 2009 as an amendment to the <em>Mental Capacity Act 2005</em>, are still commonly referred to as the “Bournewood safeguards,” but in fact the concern about the underlying issue long predates the final decision of the European Court of Human Rights on the <em>Bournewood</em> case. It goes back at least to 1983, when the new Mental Health Act brought in much greater protection for patients who were formally detained in hospital, and in particular for those who lacked the capacity to consent to treatment and who acquired additional safeguards under Part IV of that Act. However, this in turn highlighted the total absence of protection for those patients without capacity who were “<em>de facto</em> detained” under the common law.

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.

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.

scholarly journals The concept of objection under the DOLS regime

2014 ◽  
pp. 61
Author(s):  
Matthew McKillop ◽  
John Dawson ◽  
George Szmukler
Keyword(s):  
Mental Health ◽  
Mental Health Treatment ◽  
Mental Capacity ◽  
Mental Health Patient ◽  
Health Treatment ◽  
England And Wales ◽  
Mentally Disordered ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
Hospitalised Patient

<p>In England and Wales, there are now two regimes under which an adult can be deprived of liberty when receiving mental health treatment: the regime established by the Mental Health Act 1983 (MHA), and the Deprivation of Liberty Safeguards (DOLS) authorisation regime established by the Mental Capacity Act 2005 (MCA). Where both regimes might apply to a mentally disordered person in hospital for mental health treatment, a major dividing line between them is the ability of the patient to “object” to being a mental health patient or to being given mental health treatment. If such an objection occurs, a hospitalised patient is ineligible for the DOLS regime and only the MHA regime may be used to authorise the deprivation of their liberty.</p>

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