scholarly journals Article Commentary: Psychiatric Issues in Palliative Care: Assessing Mental Capacity

2013 ◽  
Vol 7 ◽  
pp. PCRT.S10889
Author(s):  
Itoro Udo ◽  
Zeid Mohammed ◽  
Amanda Gash
Keyword(s):  
Mental Illness ◽  
Palliative Care ◽  
Best Practice ◽  
Legal Protection ◽  
Mental Capacity ◽  
Best Interests ◽  
Capacity Decisions ◽  
Case Vignettes ◽  
Mental Capacity Act ◽  
The Mind

Issues surrounding capacity to consent to or refuse treatment are increasingly receiving clinical and legal attention. Through the use of 3 case vignettes that involve different aspects of mental health care in palliative care settings, mental capacity issues are discussed. The vignettes tackle capacity in a patient with newly developed mental illness consequent to physical illness, capacity in a patient with mental illness but without delirium and capacity in a patient with known impairment of the mind. These discussions give credence to best practice position where physicians act in the best interests of their patients at all times. It is important to emphasize that capacity decisions have to be made on a case by case basis, within the remit of legal protection. This is a fundamental requirement of the Mental Capacity Act 2005, England & Wales (MCA). The later is used as the legal basis for these discussions. The psychiatric liaison service is a useful resource to provide consultation, advice and or joint assessment to clinicians encountering complex dilemmas involving decision-making capacity.

scholarly journals The Mental Capacity Act and mental healthcare in prison: opportunities and challenges

2012 ◽  
Vol 36 (7) ◽  
pp. 241-243 ◽  
Author(s):  
Sharon Davies ◽  
Claire Dimond
Keyword(s):  
Mental Health ◽  
Mental Illness ◽  
Mental Healthcare ◽  
Legal Framework ◽  
Mental Capacity ◽  
Best Interests ◽  
People With Mental Illness ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
The Uk

SummaryThe UK Mental Health Act 1983 does not apply in prison. The legal framework for the care and treatment of people with mental illness in prison is provided by the Mental Capacity Act 2005. We raise dilemmas about its use. We highlight how assessing best interests and defining harm involves making challenging judgements. How best interests and harm are interpreted has a potentially significant impact on clinical practice within a prison context.

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.

Assessing capacity and decision-making

2020 ◽  
pp. 297-306
Author(s):  
Thomas McGowan ◽  
Adrian Blundell
Keyword(s):  
Decision Making ◽  
Mental Capacity ◽  
Best Interests ◽  
Capacity Assessment ◽  
Power Of Attorney ◽  
Case Vignettes ◽  
Advance Care ◽  
Mental Capacity Act ◽  
Cognitive Problems ◽  
Common Situation

This chapter, ‘Assessing capacity and decision-making’, explores mental capacity and the practical, legal, and ethical components of this common situation; the MCA (Mental Capacity Act) and its five statutory principles: the stages of capacity assessment; assessment of capacity in the context of cognitive problems; making decision for patients lacking capacity; determining patient’s best interests. Determining a patient’s best interests is often a complex area, and one in which family and friends can be uniquely placed to help you make this judgement. However, the relatives’ views have no legal standing in English law, and the decision must be made by the responsible professionals. With the help of excellent case vignettes, this chapter describes advance care planning, lasting power of attorney, IMCA (independent mental capacity advocate), DOLS (deprivation of liberty safeguards), The Court of Protection, and the implications of mental capacity on medical research.

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.

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.

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).

scholarly journals Mental capacity assessment: a descriptive, cross-sectional study of what doctors think, know and do

2020 ◽  
pp. medethics-2019-105819
Author(s):  
Dexter Penn ◽  
Anne Lanceley ◽  
Aviva Petrie ◽  
Jacqueline Nicholls
Keyword(s):  
Best Practice ◽  
Secondary Analysis ◽  
Cross Sectional Study ◽  
Mental Capacity ◽  
Capacity Assessment ◽  
Career Stage ◽  
Sectional Study ◽  
Cross Sectional ◽  
Self Confidence ◽  
Mental Capacity Act

BackgroundThe Mental Capacity Act (MCA) (2005) was enacted in 2007 in England and Wales, but the assessment of mental capacity still remains an area of professional concern. Doctors’ compliance with legal and professional standards is inconsistent, but the reasons for poor compliance are not well understood. This preliminary study investigates doctors’ experiences of and attitudes toward mental capacity assessment (MCAx).MethodsThis is a descriptive, cross-sectional study where a two-domain, study-specific structured questionnaire was developed, piloted and digitally disseminated to doctors at differing career stages employed in a large, multi-site National Health Service Trust in London over 4 months in 2018. Descriptive statistics and frequency tables adjusted for missing data were generated and secondary analysis was conducted.ResultsParticipants (n=92) were predominantly UK trained (82%), female (58%) and between the ages of 30 and 44 years (45%). Less than half (45%) of the participants reported receiving formal MCAx training. Only one-third (32%) of the participants self-rated themselves as very competent (29%) or extremely competent (4%). Self-reported MCA confidence was significantly affected by career stage with Consultants with over 10 years of experience reporting lowest confidence (p=0.001).ConclusionsThis study describes significant variation in practice by doctors and low self-confidence in the practice of MCAx. These results raise concerns that MCAx continues to be inconsistently performed by doctors despite appropriate awareness of the law and professional guidance on best practice.

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.

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