On the other hand, the House of Lords Select Committee for Health embarked on a wide-ranging review of the Act’s implementation and observed that its ‘empowering ethos’ had not been delivered: Our evidence suggests that capacity is not always assumed when it should be [and] … . 8 Namely Sir James Munby’s Practice Note of January 2014—Practice Guidance (Transparency in the Court Of Protection) [2014] EWCOP B2, particularly para 16: ‘Permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest and whether or not a request has been made by a party or the media.’. Fanning claims that considerations of the risks that compliant yet incapacitated patients may pose to themselves or others, determine the nature and intensity of their interaction with mental health services. Paul Skowron in ‘The Implications of Meno’s Paradox for the Mental Capacity Act 2005' explores when, if ever, it is right to make a decision on behalf of another person against their will. There is a risk that the application of the statutory criteria for incapacity is sometimes obscured by the non-statutory, clinical terminology of ‘insight’ used by expert witnesses in CoP proceedings. On one hand, in Aintree University Hospitals NHS Foundation Trust v James,5 the Supreme Court was widely acclaimed for insisting that the perspective of incapacitated patients should lie at the heart of the MCA’s ‘best interests’ test. The lack of enforcement mechanisms and organisations with overall responsibility for oversight of the MCA in practice was a primary criticism levied by the House of Lords Select Committee. Mental Capacity Act 2005 - summary Introduction The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. 0000000592 00000 n keeping with the original intentions of modern mental health legislation, first laid out in the 1959 MHA. In 2013 the House of Lords set up a Select Committee on the MCA to scrutinize evidence on the Act. 19 An NHS Foundation Trust v P [2014] EWHC 1650. In Case’s view, its use in evidence on capacity is often not clearly mapped onto the statutory criteria and it has the potential to cloak value judgments regarding P’s non-cooperative and obstructive behaviour in the apparel of ‘clinical fact’. To what extent has the MCA changed medical practice in England and Wales since its introduction? School of Law and Social Justice, University of Liverpool, Liverpool, L7 7EZ, UK, A.Alghrani@liverpool.ac.uk. Amel Alghrani, Paula Case, John Fanning, Editorial: The Mental Capacity Act 2005—Ten Years On, Medical Law Review, Volume 24, Issue 3, August 2016, Pages 311–317, https://doi.org/10.1093/medlaw/fww032. In the management of mentally ill patients, there is a tension between protecting the rights of individual patients and safeguarding public safety. 0000000016 00000 n The breadth of the MCA’s application was always going to pose formidable challenges in terms of managing compliance. This special issue brings together a range of papers from an array of academic and practitioner authors which reflect on the MCA’s first decade at large. 0000001361 00000 n You can change your ad preferences anytime. Mental Capacity Act 2005 Contents Purpose 2 Scope 2 Acknowledgements 2 1. 0000002735 00000 n As it enters its difficult teenage years, the MCA faces new challenges, not least the continuing instalments in the Cheshire West story, including the CoP’s efforts to introduce streamlined procedures for non-contentious deprivation of liberty applications.26 But whatever its imperfections, and whatever difficulties are faced by those who must apply it, the significant advances of the MCA and the still evolving CoP jurisprudence should not be lost on us. <]>> The Standard Contract and mental capacity 6 6. Is it working? �"a�G��8�*��l{7��Ê?�>��[� In 2006, the United Nations was agreeing the final text of the Convention on the Rights of Persons with Disabilities (UNCRPD) which came into effect in 2008. SlideShare Explore Search You. However, as its 10-year anniversary approached, the MCA appeared to have a mixed record. At the time, we expressed serious reservations about the loss of safeguards for people who lack capacity. The Mental Health Act 1959 aimed to provide a more informal approach to treating patients with mental disorders. 12 House of Lords Select Committee (n 1) para 53. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. trailer The act introduced. Fanning argues that the DOLS in this way sit on a continuum of mental health laws whose operation depends on assessments of risk. Originally conceived as a joint project the Commission has subsequently confined itself to examining the test for ‘fitness to plead’ only in the first instance. Parallel concerns with the place of P’s wishes and values are expressed by John Coggon in his article, ‘Mental Capacity Law, Autonomy, and Best Interests: An Argument for Conceptual and Practical Clarity in the Court of Protection’. Our team at Scotch Horn day centre in Nailsea, introduce and explain the main points of the Mental Capacity Act, in easy-to-understand language. 6 House of Lords Select Committee (n 1) para 104. The Committee will report in March 2014. Upload; Login; Signup; Submit Search. James, therefore, demonstrated explicit judicial acceptance of the fundamental principle that decisions should be taken through the prism of patients’ interests rather than for reasons of practical expediency or according to paternalistic instincts. The Importance of the Mental Capacity Act (MCA) 3 3. The Mental Capacity Act 2005 is the law that tells you what you can do to plan ahead in case you can't make decisions for yourself, how you can ask someone else to make decisions for you and who can make decisions for you if you haven't planned ahead. ^ Mental Capacity Act (2005) Code of Practice (2007) London: TSO. But it is often the case that P will lack litigation capacity and is heavily dependent on their ‘litigation friend’ to afford them a voice. 21 E Cave, ‘Mind the Gaps: Determining Mental Capacity to Make Medical Treatment Decisions’ (2015) 36(1) Statute L Rev 86. It is not clear as yet when the Act will come into force and further legislative procedure is still required. :��GyP������� ���5�N��?c�{��q��������vߝ�� w���g9cxxiWS�]����I$_�G � 9�7U�����?>T� ��͸�=q���r�{��b�8����n걎�0������w c��D� �Tՙ���:L>�#� (Essex Autonomy Project, 2014) accessed 11 August 2016. It has recently received Royal assent and is now known as the Mental Capacity Act 2005. An EPA made before the Mental Capacity Act came into force on 1 October 2007 remains valid. It came into force in England and Wales in 2007. 0000008310 00000 n ^ The Mental Capacity Act 2005, sections 68(4) to (6) ^ "Mental Capacity Act 2005". Department of Law, University of Liverpool, Liverpool, UK. The Act aims to empower and protect people who may not be able to make some decisions for themselves. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (. 0000001141 00000 n Fanning concludes that more must be done to reconcile English mental health law with the principles of capacity, autonomy, and non-discrimination. Last year we told you about the new Liberty Protection Safeguards (LPS) introduced in the draft Mental Capacity Act (Amendment) Bill. Published by Oxford University Press. The ‘health and welfare’ jurisdiction of the CoP is made up of emotionally charged and disturbing cases concerning individuals, often failed by their bodies and minds, and sometimes by those responsible for caring for them. We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. The Mental Capacity Act (MCA) 2005 applies to everyone involved in the care, treatment and support of people aged 16 and over living in England and Wales who are unable to make all or some decisions for themselves. As Peter Jackson J in the case of Wye Valley NHS Trust v B23 made clear, a finding that P lacks capacity should not be treated as an ‘off switch’ with regards to his rights and freedoms. Perhaps unsurprisingly, the MCA’s stipulations apply in a wide range of circumstances, pertaining to both lay and professional decision-makers (ie regardless of whether the decision-maker is a family member, healthcare professional, social worker, care worker, lawyer, or judge) and concerning a diverse array of situational contexts (eg from relatively trivial, to life-changing—and even life-ending—decisions). According Appropriate Weight to Children’s Wishes and Feelings: RESPONSIBLE PRACTICE OR RESTRICTED PRACTICE? 7 For example, ‘Agony of Woman Locked Up by Secret Court for Trying to Get Dad Out of Care Home’ Daily Mail (24 April 2013) and ‘That Sinister Court Mocks Justice Again’ The Telegraph (31 January 2015). “the wilful neglect or ill treatment of a person lacking capacity” (S 44 MCA 2005.) In English law, diminished responsibility is one of the partial defences that reduce the offence from murder to manslaughter if successful (termed "voluntary" manslaughter for these purposes). The House of Lords Select Committee on the MCA chose not to become ensnared in debates about the MCA’s compatibility, but preferred to conclude that better alignment with the UNCRPD represented a ‘reasonable aim’.12 The most contentious provision so far appears to be Article 12 of the UNCRPD which requires that those with disabilities should enjoy legal capacity on an equal basis with others. Section 44 of the Mental Capacity Act 2005 created an offence of ill-treating or wilfully neglecting a person who lacks capacity, or whom the offender reasonably believesto lack capacity. He shares concerns with many of the other authors in this special issue regarding the tensions which exist between the MCA framework (which appears to endorse decisions made against P’s will and preferences with the proviso that they are ‘objectively’ in P’s best interests) and the UNCRPD (read by many as requiring a framework for decision-making which is more closely aligned to P’s will and preferences13). Parity between patients judged to have capacity and those assessed as not having capacity would certainly bring the MCA jurisprudence closer to the values of the UNCRPD. Both an EPA and LPA must be registered. The concept of unwise decision-making faces institutional obstruction due to prevailing cultures of risk-aversion and paternalism.6, It occurred to the editors of this special issue of the Medical Law Review that the tenth anniversary of the introduction of the MCA was an opportune moment to reflect on the 2005 Act’s record so far and to evaluate its implications for the future. Retrieved 29 October 2019. Although intended to provide a simplified view on the law for the care and treatment of people who lack capacity, the importance of the issues addressed has resulted in a wide ranging Act supported by a … aD�b����/��Z����ƒ����b�w�E��UZ����,;*!D��HZ���a�(�:i)��J?g"}���$>��F.F@mj��ғ;R)!����&�)�!�9�s����?M�%b*��$cr��q�ι��� These considerations, he says, are implicitly relevant for the purposes of the DOLS’ best interests and eligibility requirements and retain a degree of paternalism in the decision-making process. More than a decade has passed since the Mental Capacity Act (MCA) received royal assent. Loading in … 5 × 1 … Abstract. In 2007, Parliament introduced the Deprivation of Liberty Safeguards (DOLS), a new legal framework designed to close the so-called ‘Bournewood’ gap.15 Tagged onto the MCA through the Mental Health Act 2007, the DOLS have proved to be a controversial innovation. Whilst not perfect, they are significant in safeguarding the lives of people who may lack mental capacity. It is understandable that much scrutiny of the Act has congregated on the theme of the ‘best interests’ test and the extent to which the emergent jurisprudence has attached weight to P’s wishes and feelings. Consequently, the interface between the DOLS and the Mental Health Act operates at times according to an ‘escalator’ dynamic; the bigger the risks, the more coercive the intervention. 0000001277 00000 n 0000008691 00000 n 0000009359 00000 n Case argues that heavy reliance on psychiatry has resulted in clinical language being imported into the business of capacity assessment, specifically the language of ‘insight’, a term with a contested history, which is not mentioned in the Act or in the accompanying Code of Practice. The Mental Capacity Act 2005 (MCA) gave nurses caring for people with impaired capacity to make decisions, a framework within which to work and made … This page summarises the various commencement orders relating to the Mental Capacity Act 2005, showing when each section of the Act came into force and in what circumstances.From 1 October 2007 the Act is fully in force. While this article is not the first to draw attention to the use of the nebulous term ‘insight’ as a proxy for capacity, Case offers an analysis of its use in post-MCA judgments. 18 See eg Law Commission, ‘Mental Capacity and Deprivation of Liberty: A Consultation Paper’ (2015) Consultation Paper No 222; Law Commission, ‘Mental Capacity and Deprivation of Liberty: Interim Statement’ (25 May 2016) accessed 22 June 2016.