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.

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 Changes to the Mental Health and Mental Capacity Acts: implications for patients and professionals

2009 ◽  
Vol 33 (6) ◽  
pp. 226-230 ◽  
Author(s):  
Ian Hall ◽  
Afia Ali
Keyword(s):  
Mental Health ◽  
Work Load ◽  
Mental Capacity ◽  
Community Treatment ◽  
Mental Health Act ◽  
Mental Capacity Act 2005 ◽  
User Groups ◽  
Treatment Changes ◽  
Mental Capacity Act

SummaryThe new Mental Health Act 2007 for England and Wales has introduced substantial amendments to the 1983 Mental Health Act and has also amended the Mental Capacity Act 2005. Most provisions came into effect in November 2008. the introduction of supervised community treatment, changes to professional roles such as the role of ‘responsible clinician’, and the introduction of deprivation of liberty safeguards in the Mental Capacity Act are discussed. Many of the new safeguards in the Act are welcomed by clinicians and service user groups. However, other changes are more controversial and could potentially lead to an increase in the work load of clinicians.

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.

scholarly journals Unfitness to Plead and the Vulnerable Defendant: An Examination of the Law Commission's Proposals for a New Capacity Test

2011 ◽  
Vol 75 (3) ◽  
pp. 194-203 ◽  
Author(s):  
Helen Howard
Keyword(s):  
Mental Capacity ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
The Many ◽  
Mental Capacity Act ◽  
Consultation Paper ◽  
Law Commission ◽  
Self Defence ◽  
Made In

The Law Commission published Consultation Paper No. 197 in October 2010 on unfitness to plead. Among the many issues to be covered were: an examination of the test for capacity which is narrower than the test for capacity under the Mental Capacity Act 2005; the scope of the trial of facts; and whether accident, mistake or self-defence could be raised as part of the defence in the context of unfitness to plead. This article will examine some of the proposals made in the Law Commission's Consultation Paper with particular focus on the meaning of capacity, along with the scope and limitations of the current law on unfitness to plead.

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.

‘As People Get to Know It More’: Experiences and Expectations of the Mental Capacity Act 2005 amongst Local Information, Advice and Advocacy Services

2010 ◽  
Vol 10 (1) ◽  
pp. 41-54 ◽  
Author(s):  
Kritika Samsi ◽  
Jill Manthorpe ◽  
Phillip Rapaport
Keyword(s):  
Decision Making ◽  
Older People ◽  
Local Information ◽  
Mental Capacity ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
North London

Information, advice and advocacy agencies are important providers of information and support to older people in the community. This study explored the role of Age Concern staff across North London in providing timely information and advice relating to advance decision-making should capacity become impaired for a variety of reasons, particularly in relation to the newly implemented Mental Capacity Act (MCA) 2005. Findings suggest that staff had varied knowledge of the MCA and most lacked confidence in providing detailed advice. Given the wide-reaching scope of the MCA, differentiating between information, advice and advocacy may be necessary.

The Court of Protection: expert witness and professional reports

2021 ◽  
pp. 1-9
Author(s):  
Martin Curtice
Keyword(s):  
Expert Witness ◽  
Mental Capacity ◽  
Expert Witnesses ◽  
England And Wales ◽  
Proper Role ◽  
Mental Capacity Act 2005 ◽  
Legal Jurisdiction ◽  
Mental Capacity Act

SUMMARY The Court of Protection has the legal jurisdiction to make decisions about people who lack capacity to make decisions themselves (in England and Wales). When hearing cases, evidence can be provided to the court by expert witnesses and professionals. The Court of Protection Rules 2017 inform the practice and procedure within the Court of Protection. This article reviews the judgment from a Court of Protection case that analyses the proper role of the expert witness in the court. In doing so the article provides guidance to authors of expert witness reports and reports under section 49 of the Mental Capacity Act 2005 submitted as evidence to the court.

Ignoring the moral and intellectual shape of the law after Bland: the unintended side-effect of a sorry compromise

Legal Studies ◽  
2007 ◽  
Vol 27 (1) ◽  
pp. 110-125 ◽  
Author(s):  
John Coggon
Keyword(s):  
Side Effect ◽  
Mental Capacity ◽  
Medical Practitioners ◽  
Sanctity Of Life ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
Mental Capacity Act

In this paper, I explore the sanctity of life doctrine and consider the scope of s 4(5) of the Mental Capacity Act 2005, a provision designed to give statutory effect to the sanctity principle. Rather than question the intellectual validity of the doctrine, I examine the legal and practical problems created by this limited section. I argue that it necessarily creates dilemmas for medical practitioners, which could only be avoided by a wholesale adoption of the principle. I conclude, therefore, that the provision fails to ensure a coherent moral and intellectual shape to the law.

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.

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