Fluctuating capacity: the concept of micro- and macro-decisions

2020 ◽  
Vol 26 (4) ◽  
pp. 238-244
Author(s):  
Martin Curtice
Keyword(s):  
Clinical Practice ◽  
Personality Disorder ◽  
Clinical Problem ◽  
Case Law ◽  
Mental Capacity ◽  
Routine Clinical Practice ◽  
Unique Case ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
First Time

SUMMARYThere is much Mental Capacity Act 2005 (MCA) case law emanating from the Court of Protection. This article reviews an important and unique case when the court specifically addressed for the first time the question of fluctuating capacity, a not uncommon clinical problem that can often be complex. It describes how the Court of Protection in Royal Borough of Greenwich v CDM [2019] legally approached an issue of fluctuating capacity in a 64-year-old woman with a personality disorder and chronic diabetes. In doing so it elucidates a new conceptual framework to apply when assessing fluctuating capacity in terms of considering micro- and macro-decisions which can be used in routine clinical practice.

scholarly journals Lasting powers of attorney: implications for clinicians

2012 ◽  
Vol 18 (3) ◽  
pp. 205-212 ◽  
Author(s):  
Martin Curtice ◽  
Isurima Katuwawela ◽  
Richard McCollum
Keyword(s):  
Case Law ◽  
Mental Capacity ◽  
Personal Health ◽  
England And Wales ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
Mental Capacity Act ◽  
First Time

SummaryIssues relating to capacity are increasingly topical and relevant, particularly following the implementation of the Mental Capacity Act 2005. Powers of attorney are one such issue that requires the assessment of capacity for their execution. This article focuses on lasting powers of attorney (LPAs), which were introduced under the Mental Capacity Act in 2007. We describe how LPAs evolved and how they have been used since the inception of the Act. We review salient case law. In doing so, we elucidate pertinent issues for clinicians, particularly in the case of health and welfare LPAs: for the first time in England and Wales, the law allows donors to nominate an attorney to make decisions about their personal health and welfare once they become incapacitated.

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 Embedding the Mental Capacity Act 2005 in clinical practice: an audit review

2014 ◽  
Vol 38 (6) ◽  
pp. 291-293 ◽  
Author(s):  
Claudia Dunlop ◽  
Oluwatoyin Sorinmade
Keyword(s):  
Clinical Practice ◽  
Healthcare Professionals ◽  
Public Awareness ◽  
Mental Capacity ◽  
The Public ◽  
Audit Review ◽  
Mental Capacity Act 2005 ◽  
Improve Compliance ◽  
Audit Cycle ◽  
Mental Capacity Act

Aims and methodAn audit cycle assessed compliance of healthcare professionals within Oxleas NHS Foundation Trust with the statutory requirements of the Mental Capacity Act 2005 in patient care. Each stage involved a retrospective review of relevant patient electronic records. The additional purpose of the audit was to make recommendations to improve compliance with the requirement of the Act by healthcare professionals and improve patient understanding of its provisions.ResultsThe audit cycle demonstrated some improvement in clinical practice as well as the need for further efforts at raising the understanding and compliance of clinicians and the public with provisions of the Act.Clinical ImplicationsHealthcare professionals need further understanding of the provisions of the Act and their responsibilities. There is also the need to enhance public awareness to provisions of the Act in relation to their decision-making autonomy. Stakeholders need to put strategies in place for these to be achieved.

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.

scholarly journals Mental capacity and borderline personality disorder

2017 ◽  
Vol 41 (1) ◽  
pp. 33-36 ◽  
Author(s):  
Karyn Ayre ◽  
Gareth S. Owen ◽  
Paul Moran
Keyword(s):  
Borderline Personality Disorder ◽  
Personality Disorder ◽  
Borderline Personality ◽  
Emotional Dysregulation ◽  
Mental Capacity ◽  
High Stakes ◽  
Decision Making Capacity ◽  
Clinical Scenarios ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

SummaryThe use of the Mental Capacity Act 2005 in assessing decision-making capacity in patients with borderline personality disorder (BPD) is inconsistent. We believe this may stem from persisting confusion regarding the nosological status of personality disorder and also a failure to recognise the fact that emotional dysregulation and characteristic psychodynamic abnormalities may cause substantial difficulties in using and weighing information. Clearer consensus on these issues is required in order to provide consistent patient care and reduce uncertainty for clinicians in what are often emergency and high-stakes clinical scenarios.

scholarly journals Understanding community care law in England and Wales

2009 ◽  
Vol 15 (6) ◽  
pp. 428-433 ◽  
Author(s):  
Danny Allen
Keyword(s):  
Mental Health ◽  
Community Care ◽  
Mental Health Problems ◽  
Case Law ◽  
Mental Capacity ◽  
Care Provision ◽  
Care Programme ◽  
England And Wales ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

SummaryAlthough psychiatrists in England and Wales are generally familiar with the Mental Health Act 1983 and the Mental Capacity Act 2005, there is a body of law that is available to assist patients in the community with which they are generally less familiar. There are two main reasons for this. The first is that it is a rather confused amalgam of different statutes and case law affecting each other in ways that are less than clear. The other is that the care programme approach (CPA) was meant to cut through all this and make care provision straightforward. In fact, the latter has never been the case and community care law has always sat uneasily alongside the CPA, but in October 2008 the CPA was withdrawn from some patients with mental health problems. This article explains what is meant by community care law and how psychiatrists can use it to help their patients.

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.

scholarly journals Mental capacity assessment and ‘best interests’ decision-making in clinical practice: a case illustration

2010 ◽  
Vol 16 (6) ◽  
pp. 440-447 ◽  
Author(s):  
Asit B. Biswas ◽  
Avinash Hiremath
Keyword(s):  
Clinical Practice ◽  
Good Practice ◽  
Mental Capacity ◽  
Best Interests ◽  
Case Illustration ◽  
Mental Capacity Act 2005 ◽  
Consent To Treatment ◽  
Legal Frameworks ◽  
Mental Capacity Act ◽  
Do So

SummaryMental capacity refers to a person's ability to make decisions, which may include consenting to medical treatment. People are presumed to have this capacity. Individuals may lack capacity because of an impairment or disturbance that affects the way their mind or brain works. Legal frameworks are in place for acting and making decisions on behalf of individuals who lack the mental capacity to do so for themselves, in their best interests. A case illustration is used to outline the principles involved under the Mental Capacity Act 2005 for England and Wales. We describe in detail the assessment of capacity to consent to treatment in this case and good practice in making best interests decisions in everyday clinical practice.

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>

Sign in / Sign up

Export Citation Format

Share Document