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).

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.

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 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

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.

scholarly journals A Pilot Study of the Early Experience of Consultant Psychiatrists in the Implementation of the Mental Capacity Act 2005: Local Policy and Training, Assessment of Capacity and Determination of Best Interests

2014 ◽  
pp. 149 ◽  
Author(s):  
Ajit Shah ◽  
Chris Heginbotham ◽  
Bill Fulford ◽  
Natalie Banner ◽  
Karen Newbigging ◽  
...  
Keyword(s):  
Learning Disability ◽  
Mental Capacity ◽  
Best Interests ◽  
Local Policy ◽  
England And Wales ◽  
People With Dementia ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
The Government ◽  
Mental Capacity Act

<p>The Mental Capacity Act 2005 (MCA) was partially implemented in April 2007 and fully implemented in October 2007 in England and Wales (with the exception of the Deprivation of Liberty Safeguards which were implemented in April 2009). The government estimated that up to 2 million adults in England and Wales may have issues concerning their decision-making capacity (henceforth ‘capacity’), and these will included 840,000 people with dementia, 145,000 people with severe learning disability, 1.2 million people with mild to moderate learning disability and 120,000 people with severe brain injury. Additionally, the prevalence of schizophrenia, mania and serious depression are 1%, 1% and 5% respectively, and some of these individuals may also lack capacity. Moreover, up to 6 million family and unpaid carers are estimated to provide care or treatment for individuals lacking capacity. Furthermore, many other people who do not lack capacity may use aspects of the MCA for future planning.</p>

The rebirth of medical paternalism: An NHS Trust v Y

2018 ◽  
Vol 45 (1) ◽  
pp. 3-7 ◽  
Author(s):  
Charles Foster
Keyword(s):  
Patient Autonomy ◽  
Public Funding ◽  
Mental Capacity ◽  
Best Interests ◽  
Health Board ◽  
Medical Law ◽  
The Supreme Court ◽  
Mental Capacity Act 2005 ◽  
Medical Paternalism ◽  
Mental Capacity Act

Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than ‘medical best interests’. The 2018 judgment of the Supreme Court in An NHS Trust v Y (which concerned the question of whether a court needed to authorise the withdrawal of life-sustaining clinically administered nutrition/hydration (CANH) from patients in prolonged disorders of consciousness (PDOC)) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests—so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw (at least) life-sustaining CANH from (at least) patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges.

The Mental Capacity Act 2005 best interests test as applied to the elderly – is it fit for purpose?

2018 ◽  
Vol 86 (3) ◽  
pp. 142-146
Author(s):  
Emma M Szelepet
Keyword(s):  
The Elderly ◽  
Mental Capacity ◽  
The Body ◽  
Best Interests ◽  
Human Flourishing ◽  
Undue Influence ◽  
Mental Capacity Act 2005 ◽  
Physical Risk ◽  
Fit For Purpose ◽  
Mental Capacity Act

The Mental Capacity Act 2005 (‘MCA’) sets out a regime which governs the making of decisions for people who lack mental capacity. Acts must be carried out, and decisions made, for such an incapacitated person, based on what is in her best interests (section 4 MCA). In this paper, I consider the body of post-MCA case law which applies the MCA best interests test to decision-making for elderly people, in various contexts. Is the best interests test ‘fit for purpose’ for the vulnerable elderly? The key aims of Parliament in introducing the test seem to have been empowerment, protection and support – and alertness to undue influence – as well as a balance between the objective and subjective viewpoints. Laudable attempts have been made by some judges, applying the MCA, to pay real heed to the patient's wishes and values, and to balance physical risk with welfare and happiness. However, it is not yet clear in my view that the new regime fully achieves Parliament’s aims. Indeed, these aims themselves should be expanded; the law in this area should also promote the significance and value of advanced years and should recognise Aristotle's concept of ‘human flourishing’ in old age. Consideration should be given to amending the MCA, adding guidance specifically for the elderly and also to introducing a Convention of Human Rights for the older person and to creating a new statutory Older Persons’ Commissioner and/or a cabinet-level Minister for Ageing and Older People.

4. Consent to Treatment

2018 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Mental Capacity ◽  
Best Interests ◽  
Living Wills ◽  
Ethical Aspects ◽  
Capacity To Consent ◽  
Delicate Balance ◽  
Mental Capacity Act 2005 ◽  
Consent To Treatment ◽  
Advance Decisions ◽  
Mental Capacity Act

This chapter examines the legal and ethical aspects of treating a patient without consent. It considers the meaning of ‘consent’ and the position of patients who lack the capacity to consent. For children who lack capacity, consent involves a delicate balance between the rights of the children and those of their parents. For adults lacking capacity, the Mental Capacity Act 2005 has emphasized the ‘best interests’ test, but has largely left open the question of how a person’s best interests are to be ascertained. The chapter also considers what weight should be attached to advance decisions (sometimes called living wills).

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.

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