The Mental Capacity Act 2005 and decision-making: advance decisions.

One of the crucial features of the Mental Capacity Act (MCA) 2005 was recognizing in a statute the ability of a person to refuse treatment at a subsequent time when he or she lacked the mental capacity to decide on treatment. This refusal, known as an advance decision or living will or advance refusal had been recognized at common law, i.e. judge-made law. This article, continuing the series on the MCA explains the statutory provisions, the specific requirements which must be satisfied if life-sustaining treatment is refused in advance and looks at a practical situation to illustrate the statutory provisions. The link between advance decisions are lasting powers of attorney is also discussed.

The Mental Capacity Act 2005: mental capacity and mental illness.

In this series of articles on the Mental Capacity Act 2005 (MCA) the author now turns to the interrelation between mental capacity and mental disorder and between the Mental Health Act 1983 (MHA) (as amended by the Mental Health Act 2007 [MHA, 2007]) and the Bournewood safeguards. The article explains how the MCA and the MHA are designed to cover distinct situations: the one mental capacity; the other mental disorder and the different definitions are considered. The article also looks at the different principles which apply and the different powers available under each Act. The different forms of protection under each Act are contrasted. Because of criticism of the UK by the European Court of Human Rights in the Bournewood case, amendments have been made by the MHA 2007 to the MCA to provide protection for those incapable of making decisions who suffer from mental disorder and whose best interests require a loss of liberty.

The Mental Capacity Act 2005: children and young persons.

In this final article of the series the author considers the extent to which the Mental Capacity Act relates to children. While the Act applies to those over 16 years, certain provisions only apply to those over 18 years: these are advance decisions, and the power to set up or be appointed under a lasting power of attorney. However, there are provisions which could apply to a child under 16 years old, if he or she is unlikely to have the requisite mental capacity at 16 years. There are powers set up to enable easy transfer of proceedings between the Court of Protection and the Family Division of the High Court and vice versa.

The Mental Capacity Act 2005 and decision-making: code of practice.

Continuing the series of articles on the Mental Capacity Act 2005, which for the most part came into force in October 2007, this article considers the significance of the Mental Capacity Act 2005 Code of Practice (Department of Constitutional Affairs, 2007), and its implications for nursing staff. The Secretary of State is required to provide a code or codes of practice on the Act covering specified areas. A draft code was prepared and was revised that came into force on 1 April 2007. The article sets out who is bound to follow the Code of Practice and the consequences if it is ignored. Informal (unpaid) carers are not required by the Act to follow the Code but it is hoped that in practice they will do so. The Ministry of Justice (replacing the Department of Constitutional Affairs) is responsible for monitoring the Code and will revise it from time to time.

The Mental Capacity Act 2005: lasting power of attorney.

This article continues the series in analysing the implications of the Mental Capacity Act 2005 by looking at how a person (donor) is able to appoint another person (donee) to have the power to act on his or her behalf in relation to care and treatment decisions. Section 9 of the Act explicates that a donee has the authority to make decisions about the donor's personal welfare or specific matters concerning the donor's personal welfare, as well as the donor's property or affairs or specific matters concerning his or her property or affairs. This article examines the details regarding these new provisions as well as the impact this new legislation is likely to have on healthcare professionals.

The Mental Capacity Act 2005: the new Court of Protection.

The new Court of Protection is now considered in the series of articles on the Mental Capacity Act 2005. The Court of Protection was established on the 1 October 2007 and has a much wider jurisdiction than its predecessor. It can now hear cases concerned with the personal welfare of those who lack the mental capacity to make their own decisions, as well as issues relating to property and finance which were the sole concern of its predecessor. This article considers the powers, procedure, practice, rules and directions of the Court and its power to appoint deputies and their role. It also considers the new Office of Public Guardian and its role in keeping a register of Deputies and Lasting Powers of Attorney. It also considers the appointment of Special and General Visitors. The implications of these new institutions are reviewed in the light of a common situation involving healthcare practitioners.

Mental capacity and decision making: defining capacity.

The Mental Capacity Act 2005 came fully into force on 1st October 2007 (some sections came into force on 1 April 2007). This series of articles considers some of the key features of the Act, including the concepts of best interests, the lasting power of attorney, the role of the new Court of Protection, the Office of Public Guardian and the deputies of the Court, to name but a few. This first article looks at the central feature of the Act: how mental capacity is determined.

The Mental Capacity Act 2005 and decision-making: best interests.

This article continues the series in analysing the implications of the Mental Capacity Act (MCA) 2005 by looking at how the best interests of a person (P) lacking the requisite mental capacity are determined. While the MCA does not provide a statutory definition of best interests, it does set out the steps which must be taken to decide on what P's best interests are. These steps are taken only after the decision has been made that P lacks the requisite mental capacity. If there is a likelihood that P could eventually make his own decisions then this must be taken account of. The steps to be taken include making no unjustified assumptions based on the person's age or appearance, condition or an aspect of his behaviour. All the relevant circumstances must be taken into account including the person's past and present wishes and feelings, any relevant written statement made by him, the beliefs and values. There must be consultation with specified others not to establish what others would wish to see happen, but to determine what P's best interests are. These steps are then applied to a typical situation in health and social care. Special provisions relating to life-saving treatment and restraint are also noted.

Incontinence and the duty to provide care.

Bridgit Dimond considers the legal implications of failing to adequately assess the continence needs of vulnerable people. A typical situation is used to illustrate the legal issues that arise (Box 1).