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.

scholarly journals Newly introduced deprivation of liberty safeguards: anomalies and concerns

2010 ◽  
Vol 34 (6) ◽  
pp. 243-245 ◽  
Author(s):  
Ajit Shah ◽  
Chris Heginbotham
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Mental Capacity ◽  
European Convention ◽  
Mental Health Act ◽  
European Court ◽  
Mental Capacity Act 2005 ◽  
Care And Treatment ◽  
Mental Capacity Act

SummaryThe European Court of Human Rights found that the care and treatment of HL in the ‘Bournewood case’ constituted infringement, in the form of deprivation of liberty, of his rights under Articles 5 (1) and 5 (4) of the European Convention on Human Rights. To prevent the infringement, the Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 via the Mental Health Act 2007. The recent implementation of the Deprivation of Liberty Safeguards on 1 April 2009 has exposed some anomalies and higlighted some difficulties in its implemention and application, and these are described in the paper.

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 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.

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.

Assessing mental capacity and making decisions

2019 ◽  
Vol 15 (4) ◽  
pp. 187-189 ◽  
Author(s):  
John Finch
Keyword(s):  
Mental Health ◽  
Mental Capacity ◽  
England And Wales ◽  
Mental Health Act ◽  
Mental Capacity Act 2005 ◽  
History Of ◽  
Mental Capacity Act

John Finch, a legal member of the Mental Health Act Commission for England and Wales from its creation by statute in 1983 until 1991, takes a fresh look at the uncomfortable history of the Mental Capacity Act 2005 and asks whether the Act has served any useful purpose.

scholarly journals Safeguards for informal patients

2014 ◽  
pp. 71
Author(s):  
Aswini Weereratne
Keyword(s):  
Mental Health ◽  
Mental Disorder ◽  
Residential Care ◽  
Elderly Person ◽  
Mental Capacity ◽  
Best Interests ◽  
Mental Health Act ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

<p>In light of the plethora of new provisions safeguarding patients who might previously have been cared for and treated informally, it may be instructive to consider who may now be considered a truly informal patient, i.e. one for whom neither process nor formality is needed. When applied to an incapacitated<br />patient requiring treatment for mental disorder, the word “informal” may now seem oxymoronic and possibly redundant. Can such a patient ever be truly informal? Part IV of the model statute suggests that an informal patient is one who lacks capacity and does not object to proposed treatment which is in their best interests, or a patient who may be treated without the use of compulsory powers; but even such a patient must now be subject to some formality if their care or treatment is to be long term or they are to be deprived of their liberty in order to ensure proper safeguards are in place.</p><p>Currently the boundary between the Mental Capacity Act 2005 (“MCA”) and Mental Health Act 1983 (“MHA”) is essentially one determined by whether the patient objects to treatment and is defined with formidable complexity in schedule 1A to the MCA. A patient eligible for MCA deprivation of liberty (“DOL”) safeguards, who could be an elderly person in long term residential care, is now subject to formal<br />processes. There is little true informality for a patient lacking treatment capacity. It is questionable whether even a capacitated patient with mental disorder, who is by definition vulnerable, may be treated informally under the MHA4 if they feel suborned into consenting by the possibility of coercion. The terminology offers a slightly deceptive impression of a benign approach with concomitant levels of<br />autonomy, but while it is appropriate to highlight a difference from compulsory process and keep formality to a minimum for the sake of informality, it is also important not to overplay formality in the name of safeguards. The latter appears to be the vice in which the MCA and MHA is now arguably gripped.</p>

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.

scholarly journals Section 136: the ‘grey zone’ after the 24-h validity period lapses

2020 ◽  
Vol 27 (1) ◽  
pp. 62-64
Author(s):  
Yathooshan Ramesh ◽  
Mukesh Kripalani
Keyword(s):  
Mental Health ◽  
Clinical Review ◽  
Common Law ◽  
Mental Capacity ◽  
Grey Zone ◽  
Mental Health Act ◽  
Mental Capacity Act ◽  
Legal Grounds

SUMMARYIf a Mental Health Act section 136 lapses at 24 h because no in-patient bed is available, the legal grounds to continue holding an individual in the place of safety are dubious. Duty of candour and a senior clinical review are essential. The use of common law and the Mental Capacity Act have limitations, the latter also raising a question about whether deprivation of liberty safeguards would also apply. Clarity of this dilemma is needed through legislation.

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