scholarly journals Mental Capacity Act 2005: The Statutory Principles and Best Interests Test

2014 ◽  
Vol 1 (13) ◽  
pp. 150
Author(s):  
Penny Letts
Keyword(s):  
Decision Making ◽  
Mental Capacity ◽  
Best Interests ◽  
Decision Making Process ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

<p align="LEFT">The Mental Capacity Act 2005, due for implementation in 2007, will create a new statutory framework intended to improve and clarify the decision-making process for people aged 16 and over who are unable to make decisions for themselves. Section 1 of the Act sets out five statutory principles intended to underline the provisions of the Act and guide its implementation and operation. The first part of this paper will look at the origins of each of the statutory principles. The second part will consider one of the principles – acting in the best interests of a person lacking capacity – in greater detail by looking at the requirements set out in the Act for determining a person’s best interests.</p>

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.

The early experience of Old Age Psychiatrists in the application of the Mental Capacity Act 2005: a pilot study

2009 ◽  
Vol 22 (1) ◽  
pp. 147-157 ◽  
Author(s):  
Ajit Shah ◽  
Natalie Banner ◽  
Chris Heginbotham ◽  
Bill Fulford
Keyword(s):  
Decision Making ◽  
Old Age ◽  
Social Care ◽  
Mental Capacity ◽  
Best Interests ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
Old Age Psychiatry ◽  
Mental Capacity Act

ABSTRACTBackground: The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 in England and Wales.Methods: A pilot questionnaire study examined the experience of consultants in Old Age Psychiatry in the early implementation of the MCA pertaining to local policy and training in the application of the MCA, the assessment of decision-making capacity, the determination of best interests, and the use of the least restrictive option and restraint.Results: Fifty-two (27%) of the 196 consultants in Old Age Psychiatry returned useable questionnaires. Seventy-five percent of them reported that local training on the application of the MCA was available, but less than 50% reported that training was mandatory. The vast majority of assessments of decision-making capacity were conducted by consultants in Old Age Psychiatry. Almost all of them reported using the four-fold specific test of decision-making capacity (DMC) described in the MCA. Restraint was reported to be rarely used.Conclusions: Consultants in Old Age Psychiatry generally reported using the criteria for the assessment of DMC, the determination of best interests and restraint described in the MCA. The findings highlight concern about the workload of clinicians in implementing the MCA and this requires careful monitoring. Consideration should be given to statutory provision of training in the application of the MCA by all healthcare and social care providers for all their healthcare and social care staff.

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 Capacity issues at the front door

2019 ◽  
Vol 80 (9) ◽  
pp. 513-516
Author(s):  
Peter Lepping
Keyword(s):  
Decision Making ◽  
Cognitive Impairment ◽  
Decision Maker ◽  
Acute Infection ◽  
Mental Capacity ◽  
Best Interests ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
Psychiatric Problems

Decision-making capacity is often overestimated by clinicians. An average of one third of patients lack capacity to make complex decisions and clinicians should be alert to such a possibility. Cognitive impairment, acute infection, intoxication and other common medical and psychiatric problems can impair patients' capacity. The Mental Capacity Act 2005 has to be applied when treating patients who lack capacity. The main decision maker for a proposed treatment or investigation is responsible for assessing capacity. However, all clinicians have to consider and assess capacity, and act in a patient's best interests if he/she lacks capacity.

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 Best interests versus resource allocation: could COVID-19 cloud decision-making for the cognitively impaired?

2020 ◽  
Vol 46 (7) ◽  
pp. 447-450 ◽  
Author(s):  
Jordan A Parsons ◽  
Harleen Kaur Johal
Keyword(s):  
Decision Making ◽  
At Risk ◽  
Mental Capacity ◽  
Best Interests ◽  
Health Conditions ◽  
Cognitively Impaired ◽  
Invasive Ventilation ◽  
Mental Capacity Act 2005 ◽  
The Media ◽  
Mental Capacity Act

The COVID-19 pandemic is putting the NHS under unprecedented pressure, requiring clinicians to make uncomfortable decisions they would not ordinarily face. These decisions revolve primarily around intensive care and whether a patient should undergo invasive ventilation. Certain vulnerable populations have featured in the media as falling victim to an increasingly utilitarian response to the pandemic—primarily those of advanced years or with serious existing health conditions. Another vulnerable population potentially at risk is those who lack the capacity to make their own care decisions. Owing to the pandemic, there are increased practical and normative challenges to following the requirements of the Mental Capacity Act 2005. Both capacity assessments and best interests decisions may prove more difficult in the current situation. This may create a more paternalistic situation in decisions about the care of the cognitively impaired which is at risk of taking on a utilitarian focus. We look to these issues and consider whether there is a risk of patients who lack capacity to make their own care decisions being short-changed.

Mental capacity and decision-making

2013 ◽  
Author(s):  
Julian C. Hughes ◽  
Christopher Heginbotham
Keyword(s):  
Decision Making ◽  
Conceptual Analysis ◽  
Mental Capacity ◽  
Best Interests ◽  
Human Beings ◽  
Basic Principles ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
The World ◽  
Mental Capacity Act

In this chapter we start by defining terms and approaches to the assessment of mental or decision-making capacity. We outline basic principles – from the Mental Capacity Act 2005 (MCA), which covers England and Wales, as well as from Scottish legislation –where the principles are relevant to other jurisdictions. More conceptual issues, for instance to do with values and best interests, soon emerge, especially in connection with life-sustaining decisions. We discuss advance directives and lasting powers of attorneyand various tests of capacity, along with safeguards in connection with research. We then provide some conceptual analysis of the notions of ‘capacity’ and ‘competence’. We hope to have demonstrated that capacity and decision-making are complex matters because they reflect deeper issues to do with our standing as situated human beings in the world.

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

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.

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