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.

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.

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.

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.

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.

scholarly journals FROM BEST INTERESTS TO BETTER INTERESTS? VALUES, UNWISDOM AND OBJECTIVITY IN MENTAL CAPACITY LAW

2021 ◽  
pp. 1-29
Author(s):  
John Coggon ◽  
Camillia Kong
Keyword(s):  
Decision Making ◽  
Mental Capacity ◽  
Best Interests ◽  
Philosophical Critique ◽  
Parliamentary Debates ◽  
Capacity Decisions ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
Personal Decision ◽  
Made In

Abstract The Mental Capacity Act 2005 governs personal decision-making for adults. It incorporates five overarching principles, including that incapacity may not be inferred merely from a person's unwise decisions and that where a person lacks capacity decisions must be made in her best interests. Through analysis of judicial treatment of unwisdom, best interests, subjectivity and objectivity, considered against parliamentary debates on the Mental Capacity Bill and philosophical critique of ideas of (un)wisdom, we argue that these principles are problematically irreconcilable. The Act's radical under-specificity means, paradoxically, that this comes to be resolved through abstracted values, rather than the centricity of the person herself.

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.

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>

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