Learning capacity- How professionals learn about mental capacity on post qualifying education programmes

2021 ◽  
Vol 17 (3) ◽  
pp. 115-137
Author(s):  
Jim Rogers ◽  
Lucy Bright
Keyword(s):  
Case Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Learning Capacity ◽  
Codes Of Practice ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
Key Aspects ◽  
Vulnerable Adults

The focus of this paper is the way in which learning on a post graduate professional academic training module is developed and articulated via processes of shadowing and the production of two assignments (a written case study and a reflective piece). The context is learning about key aspects of Mental Capacity legislation and the data for the study came from work submitted by fifty students on four successive iterations of  a 'best interests assessor' (BIA) training course in England. We sought evidence of the use of key elements including specific sections of the Mental Capacity Act 2005 (MCA) as well as case law; professional values; practice guidance; and classroom education. Moreover we were interested in the ways in which a brief shadowing of a practicing BIA helped to make sense of these disparate elements in practice. Practice guidanc from expert bodies such as SCIE and NICE, the formal legal test of capacity, and certain relevant pieces of case law were not referred to as much as expected, but most candidates showed the ability to deftly navigate the tensions and challenges which arise when trying to meld case law, statute law, codes of practice, and classroom learning and ensure that this is used to safeguard the rights of vulnerable adults.

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 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>

Medical treatment and best interests: judicial interpretation of values, wishes and beliefs under the Mental Capacity Act 2005

2020 ◽  
Vol 22 (3) ◽  
pp. 165-173
Author(s):  
Owen P. O'Sullivan
Keyword(s):  
Medical Treatment ◽  
Clinical Decision ◽  
Case Law ◽  
Decision Makers ◽  
Best Interests ◽  
Content Type ◽  
The Supreme Court ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
The Uk

Purpose The prominence of the best interests principle in the Mental Capacity Act 2005 represented an important transition to a more resolutely patient-centred model regarding decision-making for incapable adults (“P”). This paper aims to examine the courts’ consideration of P’s values, wishes and beliefs in the context of medical treatment, reflect on whether this has resulted in a wide interpretation of the best interests standard and consider how this impacts clinical decision makers. Design/methodology/approach A particular focus will be on case law from the Court of Protection of England and Wales and the Supreme Court of the UK. Cases have been selected for discussion on the basis of the significance of their judgements for the field, the range of issues they illustrate and the extent of commentary and attention they have received in the literature. They are presented as a narrative review and are non-exhaustive. Findings With respect to values, wishes and beliefs, the best interests standard’s interpretation in the courts has been widely varied. Opposing tensions and thematic conflicts have emerged from this case law and were analysed from the perspective of the clinical decision maker. Originality/value This review illustrates the complexity and gravity of decisions of the clinical decision makers and the courts have considered in the context of best interests determinations for incapacitated adults undergoing medical treatment. Subsequent to the first such case before the Supreme Court of the UK, emerging case law trends relating to capacity legislation are considered.

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.

scholarly journals The Use of Neuroscience and Psychological Measurement in England's Court of Protection

2020 ◽  
Vol 11 ◽  
Author(s):  
Andrew McWilliams ◽  
Stephen M. Fleming ◽  
Anthony S. David ◽  
Gareth Owen
Keyword(s):  
Brain Function ◽  
Mini Mental State Examination ◽  
Case Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Quantitative Review ◽  
Mental Capacity Act ◽  
State Examination ◽  
Neuroscience Community

The 2005 Mental Capacity Act of England and Wales provides a description in statute law of a test determining if a person lacks “mental capacity” to take a particular decision and describes how the “best interests” of such a person should be determined. The Act established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts. Human rights organisations and others have raised concerns about the nature of assessments for incapacity, including the role of brain investigations and psychometric tests.Aim: Describe use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings.Method: Quantitative review of case law using all CoP judgments published until 2019. The judgments (n = 408) were read to generate a subset referring to structured testing (n = 50). These were then examined in detail to extract the nature of the measurements, circumstances of their use and features of interpretation by the court.Results: The 408 judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. 120/146 (82.2%) referred to “impairment of mind or brain,” with this being part of assessment for incapacity in 58/146 (39.7%). Measurement referred on 25/146 (17.1%) occasions to “functional decision-making abilities.” Structured measures were used most commonly by psychiatrists and psychologists. Psychological measurements comprised 66.4% of measures. Neuroimaging and electrophysiology were presented for diagnostic purposes only. A small number of behavioural measures were used for people with disorders of consciousness. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once. Judges rarely integrated measurements in their capacity determinations.Conclusion: Structured testing of brain and psychological function is used in limited ways in the Court of Protection. Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom.

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).

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.

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.

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.

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