Mental Capacity Act 2005

This chapter covers the Mental Health Act 2005 and includes topics on The Core Test for Mental Capacity, The Obligation to Assist a Person to Gain Capacity, The Best Interests Assessment when a Patient Lacks Capacity, Non-Discrimination in Best Interests Assessment, Derivation of Liberty: General Principles, Derivation of Liberty: Life-Saving Treatment, Protection for Those Wrongly Assessing Capacity Or Best Interests, Definition of a Lasting Power of Attorney, General provisions on advanced directives, Effect of an advance decision, The Effect of Advance Decisions, Things that the Mental Capacity Act cannot authorise, and Authorising of Deprivation of Liberty.

‘Turning up the volume’: Increasing respect for the wishes and feelings of women with intellectual impairment in decisions about their reproductive rights in England and New Zealand

In 2004 a New Zealand Family Court Judge ordered that two extremely serious and irreversible interventions (termination of pregnancy and sterilization) be carried out on a 29-year-old woman, with mild to moderate intellectual disability, over her strenuous objection. Though her appeal was partially successful, an option which both respected her wishes and feelings and in all likelihood better promoted her best interests was not explored. A decade later, another Family Court judge held that it was in the best interests of a young woman with Down syndrome to be sterilized for contraceptive purposes, in spite of her indication that she might wish to have babies one day. The decisions were made under NZ’s adult guardianship legislation, into which courts have incorporated a best interests principle, which they have interpreted broadly. But, in contrast to the Mental Capacity Act 2005 (MCA), NZ’s statute lacks any requirement for decision-makers to take into account the wishes and feelings of the person with mental impairment. That requirement has been the catalyst for a more-empathetic, person-centric interpretation in English case law. Further reform to the MCA is advocated for, which would give formal primacy to P’s wishes and feelings through presumptions or special phrases, as well as requiring a reasoned justification for departing from them. The Convention on the Rights of Persons with Disabilities goes even further: the article 12 right to legal capacity requires respect for the ‘will and preferences’ of people with mental impairments and controversially, according to the UN Committee’s interpretation, requires the replacement of substitute decision-making regimes based on best interests with supported decision-making frameworks based on a person’s will and preferences.

The Court of Protection: expert witness and professional reports

SUMMARY The Court of Protection has the legal jurisdiction to make decisions about people who lack capacity to make decisions themselves (in England and Wales). When hearing cases, evidence can be provided to the court by expert witnesses and professionals. The Court of Protection Rules 2017 inform the practice and procedure within the Court of Protection. This article reviews the judgment from a Court of Protection case that analyses the proper role of the expert witness in the court. In doing so the article provides guidance to authors of expert witness reports and reports under section 49 of the Mental Capacity Act 2005 submitted as evidence to the court.

3. Consent

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.

8. Mental health

This chapter focuses on statutory provisions governing mental health and mental health disorders, with particular reference to the Mental Health Act 1983 and the Mental Capacity Act 2005. It first outlines modern approaches to mental disorders, including legal reforms and the MHA 1983 Code of Practice (2015). It considers the main routes by which patients are admitted to the mental health system (voluntary or involuntary), deprivation of liberty, including Cheshire West and the proposed liberty protection safeguards, and the issue of consent with regards to medical treatment. Finally, the chapter discusses community care that must be provided to people with mental health disorders following discharge from hospital, particularly aftercare and supervised community treatment orders. Relevant cases are considered.

Assessing mental capacity

Mental capacity is the ability to retain, process, and weigh up information to provide a completely objective decision independent of any cognitive impairment present. Awareness of an individual’s mental capacity is important for all healthcare professionals. Mental capacity and capacity assessments are guided by the legal framework; the Mental Capacity Act 2005. Mental capacity assessments enable practitioners to determine if a patient is able to make reasoned decisions independently, or whether the patient requires assistance in their best interests and are decision and time dependent. Therefore, capacity can fluctuate over time and if someone is deemed to have no capacity on one occasion this does not mean that they should be assumed to consistently lack capacity. The act delivers five key principles to follow in order to determine whether an individual has or lacks mental capacity.

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

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.

Operationalising the Deprivation of Liberty Safeguards (DoLS) in support of brain injury survivors – views from practice

Purpose Deprivation of Liberty Safeguards (DoLS), as part of the Mental Capacity Act 2005 (DoLS, 2007), was established to provide a legal framework for decision-making in respect of adults who lack capacity to make decisions in relation to their care and residence in England and Wales. The purpose of this study was to explore the DoLS decision-making process from the perspectives of health and social care practitioners when working with individuals with an acquired brain injury (ABI). Design/methodology/approach A total of 12 health and social care practitioners were interviewed in 2019–2020 about their experiences of using and making or supporting decisions in the DoLS framework with ABI survivors. Data were analysed, and a tentative explanation of variations in DoLS decision-making was developed. Findings Three distinct approaches emerged capturing different decision-making styles (risk-averse, risk-balancing and risk-simplifying) which appeared to influence the outcome of DoLS assessments. A range of mediating factors seemed to account for the variability in these styles. The wider contextual challenges that impact upon practitioners’ overall experiences and use of DoLS processes in their ABI practice were noted. Research limitations/implications The findings highlight a need for changes in practice and policy in relation to how DoLS or similar processes are used in decision-making practice with ABI survivors and may be relevant to the implementation of the Liberty Protection Safeguards that are replacing the DoLS system. Originality/value To the best of the authors’ knowledge, this is the first study to explore accounts of DoLS decision-making practices in ABI service.

21. Capacity

This chapter discusses the issue of capacity. The general rule is that contracts are valid but unenforceable on minors (persons under 18 years of age). However, they are enforceable against adults, and a minor can ratify a contract upon attaining the age of majority so that the contract is enforceable against both parties. At common law, mental incapacity is not by itself a reason to set aside a contract. But if the other party knows, or ought to know, of the mental incapacity, then the contract can be set aside. The Mental Capacity Act 2005 makes it clear that a person who lacks capacity must still pay a reasonable price for necessary goods and services.