Legal Aspects of Mental Capacity (eBook)
John Wiley & Sons (Verlag)
978-1-119-04535-9 (ISBN)
Highly Commended in Health and social care in the 2017 BMA Medical Book Awards
The Mental Capacity Act (2005) regulates decision making processes on behalf of adults who are unable to give informed consent, due to a loss in mental capacity (be that from birth, or due to an illness or injury at some point in their lives). Since the Act's original conception the new Court of Protection is now firmly established, and there have been significant Supreme Court cases, as well as further guidance on the 2005 Act and major developments in the use and assessment for Deprivation of Liberty Safeguards.
Thoroughly updated to take account of the many updates, developments and changes in legislation and guidance, the new edition of Dimond's authoritative guide will be warmly welcome by practitioners and students who need to understand and work within the Mental Capacity Act, and how it applies to their professional responsibilities.
- A highly practical guide to the Mental Capacity Act and its provisions since its conception in 2005
- Relevant for a wide range of practitioners and students within health and social care
- Highly readable and easily accessible, even for those with no legal background
- Includes a range of learning features, including scenarios, questions and answers, key summary points, and applications for practice.
Legal Aspects of Mental Capacity is an essential resource for all healthcare and social services professionals, students patient services managers and carers working with those who lack the capacity to make their own decisions.
Bridgit Dimond is well known for her writings on health service law.?She is a former member of the Mental Health Act Commission and a non-executive of Bro Taf Health Authority.?She is an Emeritus Professor of the University of South Wales?and a former non-executive director of Shaw Homes, a Friendly Society which manages nursing homes and care homes for the elderly, mentally infirm and those with special needs.
LEGAL ASPECTS OF MENTAL CAPACITY A Practical Guide for Health and Social Care Professionals SECOND EDITION Praise for the first edition: Invaluable in negotiating the legal minefield that surrounds the complicated issue of mental capacity. Mental Health Practice In Dimond s Legal Aspects of Mental Capacity, we find a well-crafted reference book that goes beyond mere presentation of the law and relevant regulations. Metapsychology The Mental Capacity Act (2005) regulates decision-making processes on behalf of adults who are unable to give informed consent due to a loss in mental capacity (be that from birth or due to an illness or injury at some point in their lives). Since the act s implementation, the new Court of Protection has been firmly established, and there have been significant Supreme Court cases, as well as further guidance on the 2005 Act and major developments in the use and assessment for Deprivation of Liberty Safeguards. Thoroughly updated to take into account the many updates, developments, and changes in legislation and guidance, the new edition of Dimond s authoritative guide will be warmly welcome by practitioners and students who need to understand and work within the Mental Capacity Act and how it applies to their professional responsibilities. A highly practical guide to the Mental Capacity Act and its provisions since its conception in 2005 Relevant for a wide range of practitioners and students within health and social careHighly readable and easily accessible, even for those with no legal background Includes a range of learning features, including scenarios, questions and answers, key summary points, and applications for practice. Legal Aspects of Mental Capacity is an essential resource for all healthcare and social services professionals, students, patient services managers, and carers working with those who lack the capacity to make their own decisions.
BRIDGIT DIMOND is well known for her writings on health service law. She is a former member of the Mental Health Act Commission and a non-executive of Bro Taf Health Authority. She is an Emeritus Professor of the University of South Wales and a former non-executive director of Shaw Homes, a friendly society which manages nursing homes and care homes for the elderly, mentally infirm, and those with special needs
Title Page 5
Copyright Page 6
Contents 7
Preface 8
Acknowledgements 9
Table of cases 10
Table of statutes 16
Glossary 19
List of abbreviations 24
CHAPTER 1 Introduction: Anatomy of the Mental Capacity Act and its terms 27
Mental health and mental capacity 29
Deprivation of Liberty safeguards 29
Coming into force of the MCA 29
Sources of help 30
Professional legal advice 31
Terms used 31
Organizations involved in the care and support of adults who lack mental capacity 32
Quick fire quiz, QFQ1 32
References 32
CHAPTER 2 Background to the legal system and the Mental Capacity Act 34
Introduction 34
The legal system 34
Changing the law 35
Official guidance and advice 35
Human rights 35
Judicial review 35
The law relating to trespass to the person and consent 36
Decisions relating to mental capacity 38
The principle of necessity 38
Weaknesses of common law 38
Law Commission 39
Events since 1995 39
Mental Capacity Act 2005 39
Mental health legislation 39
Reform of the Mental Health Act 1983 40
Inherent jurisdiction of the court 41
Conclusions 43
Quick fire quiz, QFQ2 43
References 43
CHAPTER 3 Human rights and statutory principles for governing decision making 45
Introduction 45
The Human Rights Act 1998 45
European Convention on Human Rights 46
Article 2: Right to life 46
Article 3: Prohibition of torture 47
Article 4: Prohibition of slavery and forced labor 47
Article 5: Right to liberty and security 48
Restriction and loss of liberty 48
Allegation of incompatibility between Ss2 and 29(4) of MHA and Article 5 49
Restraint and loss of liberty 50
Article 6: Right to a fair trial 50
Article 8: Right to respect for private and family life 51
Article 9: Freedom of thought, conscience, and religion 51
Article 10: Freedom of expression 52
Article 14: Prohibition of discrimination 52
UN Convention on Rights of Persons with Disabilities 52
Convention on the International Protection of Adults 52
Statutory principles governing decision making under the MCA 53
Principle one: Presumption of capacity 53
Principle two: Practicable steps to assist capacity 53
Principle three: Unwise decisions 53
Principle four: Best interests 54
Principle five: Least restrictive options 54
Disability discrimination legislation and the Equality Act 2010 54
Conclusions 55
Quick fire quiz, QFQ3 55
References 55
CHAPTER 4 Definition of mental capacity 57
Significance of mental capacity 57
Presumption that capacity exists 57
Presumption of capacity: scenario 58
How is mental capacity defined? 58
Stage 1 An impairment or disturbance? 58
Superficial judgments 59
Children and young persons 59
Stage 2 An ability to make decisions 60
What is meant by inability to make decisions? 60
Facilitating communication 61
Explanation of ‘appropriate to his circumstances’ 61
Temporary retention of information 63
Intermittent capacity 63
What kind of information is relevant? 63
Functional approach to mental capacity 64
Issues arising in deciding if a person lacks mental capacity 64
Who carries out the assessment of capacity? 64
When is help brought in for the assessment? 65
Use of experts in determining if the requisite capacity exists 65
How often must the assessment be carried out? 65
What if there is a dispute over the assessment? 66
What role do relatives play in the assessment? 67
Assessment of capacity in an everyday situation 67
Has guidance been provided on the assessment? 67
Is the assessment a medical one or does it involve social and other types of assessment? 68
What happens if P does not accept the assessment of a lack of capacity? 68
Unwise decisions 68
Dangers in making assumptions 69
Cases illustrating different kinds of decision making 70
The capacity to litigate 70
Capacity and finance 71
Capacity to marry 71
Capacity and sexual relations 72
Undue influence and capacity 72
Mental capacity: holiday case 73
Capacity and residence 73
Conclusions 73
Quick fire quiz, QFQ4 73
References 74
CHAPTER 5 Making decisions in the best interests of others 75
Introduction 75
Best interests—the fourth principle 75
Who makes the decision on best interests? 76
What is meant by best interests? 76
The criteria used to determine best interests 76
1 Unjustified assumptions (4(1)) 76
Example of a case which decided what were ‘best interests’ 78
2 Consider all the relevant circumstances (4(2)) 78
3 Consider whether capacity is likely to be recovered (4(3)) 79
4 Support P’s ability to participate (4(4)) 80
5 In lifesaving treatment, a desire to bring about death should not be the motivation (4(5)) 81
6 Consider P’s wishes and feelings, beliefs, and values and other factors P would consider (4(6)) 81
Risk taking 83
7 Consult views of specified others (4(7)) 83
Case illustrating consultation duty 86
The criteria used to determine best interests 86
Who decides? What role does the family play? 86
Disputes over what is in a person’s best interests 86
Standard of compliance: Section 5 86
Activities protected under Section 5 87
Exclusions from Section 5 88
Restraint—Section 6 88
Restraint and LPA 89
Payment for necessary goods and services 89
Reimbursement of expenditure 89
Decisions excluded from the Act 90
Exclusion of MHA matters (S28(1)) 91
Exclusion of voting rights (S29(1)) 91
Advance decisions 92
Decisions which should go to the CoP 92
Decision making in specific areas 92
Illustrative cases 92
Decisions about sexual activity 92
Intimate care 93
Serious medical treatment 93
Case illustrating decision about serious medical treatment 94
Obstetric case and caesarean 94
Sterilization 95
Anorexia 95
Best interests and contact 96
Best interests and conflict within family 96
Best interests and property 96
Selling the Pissarro 96
Best interests and residence 96
Best interests and marriage 97
Best interests and the balance sheet approach 98
Guidance on best interests 98
Working within the funding available 99
Use of funds for a sibling 99
Conclusions 100
Checklist for determining best interests on behalf of P 100
Quick-fire quiz, QFQ5 100
References 100
CHAPTER 6 Lasting powers of attorney 103
Introduction: Statutory provisions 104
What about existing EPAs 106
What is an LPA? 107
Forms for LPAs 107
Who can make LPAs? 107
How would capacity be defined? 107
How are they drawn up? 108
What could an LPA cover? 108
General 108
Specific 108
Who could the donee be? 108
Trust corporation 108
What if the donee did not know of the appointment? 108
What if the donee changes his or her mind? 109
What conditions are required for a valid LPA? 109
The donor must have the requisite mental capacity to sign the LPA 109
Can more than one donee be appointed? 110
What happens if there are several donees who disagree? 110
What formalities must be followed? 110
Execution of the LPA 110
Registration 111
Objections to registration 111
What do the registration provisions mean? 111
When the LPA is first drawn up? 111
Schedule 1 provisions 111
Schedule 1 Part 2 of the MCA registration provisions 112
Schedule 1 Part 3 of the MCA: cancellation of registration and notification of severance 112
Schedule 1 Part 4 of the MCA: records of alterations in registered powers 112
Nonregistration 112
Fees in respect of the LPA and Court of Protection 112
Limitations on an LPA 113
The appointing of a replacement donee 113
Where the donor is detained under the Mental Health Act 2007 113
Restraint of P 113
Qualifications on lasting powers of attorney 113
Hypothetical dispute over LPA 114
Manual handling and human rights 115
Decisions on health and welfare 115
What is the role of the LPA in advance decisions which relate to life and death issues? 115
LPA and advance decision 116
Applicability of the advance decision to the present situation 117
Does the LPA apply? 117
Power in LPA to refuse lifesaving treatment 117
What is the significance if a patient in hospital has drawn up an LPA? 118
Refusing pain relief 118
What is the significance for care homes if a resident has drawn up an LPA? 118
LPA and the best interests of the patient 118
Gifts 119
Acting contrary to the best interests of the donor 120
How does the donee know when the LPA comes into effect? 120
LPA covering property and finance 120
LPA covering personal welfare 120
What principles must be followed by the donee in making decisions? 120
In what circumstances can a donee act contrary to the best interests of the donor? 121
How would action to control a donee commence and be followed through? 121
Who would represent P in checking up on the actions of the donee? 121
Duties of donee or attorney 122
What happens if the donor changes his mind about setting up an LPA? 122
How long does an LPA last? 123
How can an LPA be changed? 123
Revocation of LPAs 123
Re DP (Revocation of a lasting power of attorney) (January 24, 2014)43 124
Bankruptcy 125
Fraudulent donee 125
What happens if the donee does not carry out what the donor would have wished? 126
Protection of donee and others if no power is created or the power is revoked 126
Powers of the Court of Protection in relation to the validity of LPAs (Sections 22 and 23) 126
Powers of the Court of Protection in relation to the operation of LPAs 127
Application to the Court of Protection 128
Future changes 128
Conclusions 129
Quick fire quiz, QFQ6 129
References 129
CHAPTER 7 Court of Protection, court-appointed deputies, the Office of the Public Guardian, and visitors 131
Introduction 131
Court of Protection 131
Constitution of the CoP 131
General powers and effect of orders 132
Interim orders and directions 132
General powers of the CoP 132
Who should provide the accommodation? 134
Decisions of the CoP 134
Reports for the CoP 135
Making an application to the CoP 135
Informing P 135
Consideration of applications 136
Dispensing with a hearing 136
Private or public hearing 137
P and attendance at court 137
Permission to apply 138
Procedure for applications to the CoP (S.50) 138
Private international law 138
Permission to apply to the CoP 138
CoP Rules (S.51) 138
CoP practice directions (S.52) 139
Rights of appeal (S.53) 139
Award of damages 140
Fees and costs 140
Who pays the fees? 140
Application to the CoP 141
Preaction protocol 141
Overriding objective of the CoP 141
Attempting a reconciliation 141
Decisions which can only be made by the CoP 141
Powers of CoP and the Deprivation of Liberty Safeguards 142
Enforcement of decisions 142
Court-appointed deputy 142
Contested applications for appointment of deputy 143
Guidance for deputies appointed by the court 144
Single order or appointment of deputy? 144
Control of a deputy by the CoP 145
Supervision of a deputy 145
Illustrative cases 145
Deputy and personal welfare decisions 146
Deputies and property and affairs 147
Schedule 2 147
Appointment of deputy 148
The deputy as agent of P 149
Payment of deputies 149
Security 149
Reports 149
Right of deputy to require review of decisions made by the Public Guardian 149
Restrictions upon the powers of deputies 149
Restrictions on powers in relation to property 150
Duties of deputies 151
Making gifts 152
P and his representation 152
A successor deputy 153
Office of Public Guardian 153
Public Guardian Board 155
CoP visitors (S.61) 155
Duties of visitors 155
Advocacy and the CoP 156
People under 18 years 156
Code of Practice 156
CoP and LPAs 157
Official Solicitor 157
House of Lords Post-Legislative Scrutiny of the MCA 200596 157
Conclusions 158
Quick fire quiz, QFQ7 158
References 158
Chapter 8 Independent mental capacity advocates 161
Background to the provision on independent advocates 162
The principle of advocacy 165
When should an advocate be appointed? 165
Who can be an advocate? 165
Powers of the IMCA (S.35(6)) 166
What are the duties and functions of the independent mental capacity advocate? 166
How is an advocate held to account, if he or she has failed to fulfill these duties? 167
Who monitors what the advocate is doing? 167
What about payment to the advocate? 167
Who can challenge the appointment of an advocate, for example, if there is a split in the family? 167
Can an advocate access the patient’s records? 167
Is an advocate under a duty of confidentiality? 168
What training will an advocate have? 168
When could an advocate be appointed in spite of family and friends being available? 168
Who else could be consulted before an IMCA is appointed? 168
Exceptions to the appointment of an IMCA 169
IMCA and court-appointed deputy 169
How can an advocate challenge decisions made in the light of information he or she has provided which seems to have been ignored? 169
Right of IMCA to challenge the decisions 169
Formal dispute resolution 170
Can an advocate delegate responsibility? 171
What problems might an advocate face? 171
A question of time 171
What happens if an advocate wishes to have an input into decisions on which the responsible authority decides that there is no need to seek IMCA advice? 172
An issue of discrimination 172
What if P disagrees with the IMCA? 172
What about documentation by advocate? 172
Statutory situations where an IMCA must be appointed 173
Providing serious medical treatment (S.37) 173
Should an advocate be appointed? 174
When must the IMCA be appointed? 174
Serious medical treatment 174
Who would be appointed as the IMCA? 174
What actions must the IMCA take? 174
What is the effect of the IMCA appointment? 174
Best interests and reasonable medical opinion 175
Who would make the decision within the NHS trust? 175
Urgent serious medical treatment 175
Extremely serious medical treatments and other decisions 175
Arranging accommodation by NHS body (S.38) (see Statute Box 8.4) 175
Arranging accommodation by an LA body (S.39) (see Statute Box 8.5) 176
Should an independent mental capacity advocate be appointed for Justin? (Scenario 8.5 on page 148) 177
Is there an alternative? 177
Is it the right kind of accommodation? 177
Do any of the exceptions apply? 178
Who should be the advocate? 178
What will Paul do as the advocate? 178
What powers does Paul as the IMCA have? 178
What considerations should Paul take into account? 178
What is the effect of Paul’s report? 179
Paul’s remuneration 179
Urgent transfer to new accommodation: No IMCA 179
Sections 39A–39E added by MHA 179
Accommodation for those with mental health problems 180
An appropriate adult for consultation 180
Review of accommodation arrangements by NHS body or LA (care reviews) 181
Adult protection cases 181
Guidance on adult protection and care reviews 181
The Independent Mental Capacity Advocacy services 182
How is it funded? 182
How is it managed? 182
How is its independence secured? 182
How is it held accountable? 182
What if it fails to provide advocates? 183
Who sets the standards? 183
Who enforces the standards? 183
Who monitors? 183
Does it have to provide an annual report? 183
The responsible authorities 183
Scope of the IMCA’s remit 184
Exceptions to the duty to instruct an IMCA (S. 40) (see statute Box 8.6 on page 138) 184
Codes of Practice (see also Chapter 17) 184
Changes to the role of the IMCA (S41) (see Statute Box 8.7 on page 138) 185
Implementation 185
Nonstatutory advocacy 185
The future 185
The House of Lords Select Committee on the Mental Capacity Act 2005 185
Government response 186
Conclusions 187
Checklist for the appointment of an IMCA under the MCA 187
Quick fire quiz, QFQ8 187
References 187
CHAPTER 9 Advance decisions 189
Introduction 189
Advance decision to refuse treatment: General 190
Definition 190
Who can draw up an advance decision? 191
How is it to be drawn up? 192
What are the legal formalities? 192
Oral advance decisions 193
How can it be changed? 193
Withdrawing or altering an advance decision 194
Validity and applicability of advance decisions 194
What situations would an advance decision cover? 195
Capacity of P 195
Relevance of the advance decision 195
Life-sustaining treatment 195
What are life-sustaining treatments? 195
Conditions for an advance decision to cover life?sustaining treatment to be valid 196
In writing 196
Specifying treatments in an advance decision 196
What would the situation be if the hospital used electronic records? 197
Advance decisions and best interests 197
Advance decisions and lasting powers of attorney 198
Effect of a valid advance decision 198
Reasonable belief on the validity of an advance decision 199
Court declaration on the validity of an advance decision 199
Application to the Court of Protection 200
What can be refused? 202
Conscientious objection 202
Excluded decisions 203
Pregnant women and advance decisions 203
Implications for health and social services professionals 204
Criminal offences 204
Refusal to follow a valid, applicable advance decision 204
Advance request to initiate or continue treatment 204
Burke decision 204
House of Lords Scrutiny of the Mental Capacity Act 2014 204
Conclusions 205
Checklist to determine whether one is bound by an advance decision 206
Quick fire quiz, QFQ9 206
References 206
CHAPTER 10 Research 208
Introduction: Research principles 208
Statutory provisions 209
Conditions for intrusive research 209
Mental capacity of the proposed research data subject 209
Capacity to consent exists 212
Lack of capacity to consent 212
Conditions necessary for the research to proceed 212
Is the research intrusive? 212
Could the research be carried out on others who were capable of giving consent? 213
Will Donald benefit? 213
Benefit to others affected by the same or a similar condition 213
Consultation with others 213
What must Ben tell the person who is consulted or nominated? 214
What are the effects of the consultation? 214
Withdrawal from project 214
Intrusive research 214
Nonintrusive research 215
Requirements for approval 215
Impairing condition 215
Balancing risks against benefits 215
Consulting carers (Section 32) 216
Additional safeguards (Section 33) 217
Evidence of resistance (Scenario 10.3) 217
Constant monitoring 218
Urgent research (S.32(8)(9)) 218
Personal vis-à-vis benefits to science and society 219
Loss of capacity during research project 219
NHS RECs 220
NHS Health Research Authority 221
Clinical trials 221
Conclusions 222
Checklists 222
Quick fire quiz, QFQ10 224
References 224
CHAPTER 11 Protection of vulnerable adults and accountability 225
Introduction 225
Criminal offence to ill-treat or wilfully neglect a person who lacks capacity 226
Carer of the mentally incapacitated person 226
What is covered by ill-treatment and wilful neglect? 227
Cases on criminal liability under Section 44 of the MCA 228
Fraud Act 229
Multiagency cooperation 230
Valuing People 230
Eligibility criteria for continuing care 231
Funding of long-term care 231
Green Paper on the funding of long-term care in the future 231
White Paper on social care 232
The Dilnot report on social care 232
Caring for our future: Reforming care and support 232
Care Act 2014 233
The key features of the Care Act 2014 include the following: 233
Protection of Vulnerable Adults 234
Criminal law and mental capacity 235
Having the requisite mental capacity (i.e., mens rea) 235
Police procedures on arrest 235
Making a confession 236
Being a witness 236
Being on a jury 236
Sexual Offences Act 2003 236
Contractual liability and mental incapacity 238
Protection in a contractual situation 238
Financial abuse (Scenario 11.4) 238
Acts in connection with care or treatment 239
Criminal law on murder, manslaughter, suicide, letting die and pain relief 239
Murder 239
Involuntary manslaughter 239
Voluntary manslaughter 240
Suicide 240
Letting die and killing 241
Tony Bland case 242
Withholding life-sustaining treatment case 242
Assisted suicide 243
Cases of Re B and Diane Pretty 243
Pain relief and killing 244
Other criminal offences 245
Civil liability 245
Negligence and other civil wrongs 245
Duty of care 245
Of what does the duty consist? 246
Duty to parents 246
Standard of care 246
What if there are different opinions over the standard which should be followed? 247
Standards of care and national guidance 247
The MCA Code of Practice 247
Causation 248
An example of negligence 248
Factual causation 248
Loss of a chance 249
Harm 249
Time limits 250
Burden of proof 250
Procedural provisions for claims brought in the name of a mentally incapacitated adult 251
Disciplinary action 251
Professional conduct proceedings 252
Confidentiality 252
Complaints 252
Conclusions 252
Quick fire quiz, QFQ11 252
References 253
CHAPTER 12 Children and young persons 255
Introduction 255
European Convention on Human Rights and the United Nations Convention on the Rights of the Child (1989) 255
Children Act 1989 256
Family Law Reform Act 1969 and children of 16 and 17 256
Changes to the Mental Health law on overruling the refusal of a young person of 16 or 17 years 257
Young persons and children under 16 years 257
Parental rights and consent on behalf of young persons and children 257
Sterilization in the best interests of a young person (Case Study 12.2) 258
Court of protection: Property and financial decisions 258
Jurisdiction over the 16- and 17-year-old 259
Dispute in relation to care and treatment 260
The most appropriate court 260
Offence of ill-treatment and neglect 261
Provisions of the MCA which are not available for use in respect of a 16? and 17?year?old 261
Lasting power of attorney 261
Deputy 261
Advance decision 261
Validity of the advance decision 262
Rights of Ahmed’s parents 262
Procedural measures 262
Making a will 262
DOLs 262
Court of protection 263
Urgent cases 263
Conclusion 263
Quick fire quiz, QFQ12 263
References 263
CHAPTER 13 Mental capacity and mental disorder 265
Mental incapacity contrasted with mental disorder 265
What are the main differences between the Mental Capacity Act (MCA) 2005 and the MHA 1983 as amended by the 2007 Act? 265
MCA and exclusion of mental disorder 266
Treatment provisions of the MHA 1983 266
Exclusion of short-term detained patients 267
Treatment for physical disorders 268
IMCAs and Sections 37, 38, and 39 270
Refusal of treatment by an advance decision 272
Nearest relative and the European Convention on Human Rights 273
Guardianship or community treatment order 274
Court of Protection 274
Court of Protection visitors (S.61) 274
Lasting powers of attorney and deputies of the Court of Protection 274
Role of deputy when patient detained under the MHA 275
Reform of the MHA 1983 276
Interface between MHA and MCA 277
Restraint 277
Inherent jurisdiction 278
Conclusions 278
Quick fire quiz, QFQ13 278
References 278
CHAPTER 14 Deprivation of liberty safeguards 279
Reform of the Mental Capacity Act 2005 to fill the Bournewood gap: Background to deprivation of liberty safeguards 279
Options to fill the gap identified in the Bournewood case 281
Deprivation of liberty 281
Deprivation of Liberty Safeguards 281
Court of Protection Practice Direction on Deprivation of Liberty 287
Deprivation of liberty situation: Scenario 14.1 287
Deprivation of liberty in other circumstances 288
Transporting of P 289
The relevant person’s representative (RPR) 289
The role of the RPR under Part 10 Schedule A1 290
Assessments, assessors, eligibility requirements, and monitoring 290
Assessments 290
Assessors 290
General eligibility criteria 290
Selection of assessors 291
Monitoring of assessors 291
Information to be provided with an application for authorization 292
Time frame for assessments 292
Ordinary residence 292
Role of the Court of Protection 293
Independent Mental Capacity Advocate 293
Supreme Court Cases of Chester and Surrey 295
Definition of deprivation of liberty 295
Events following the Chester Supreme Court decision: 297
Department of Health Memorandum 201440 297
Actions suggested by the Department of Health 298
Authorizing a deprivation of liberty 298
Further information 298
House of Lords Select Committee Report on Mental Capacity Act 200541 298
Government Response to House of Lords Select Committee report42 299
Cases on specific issues 299
The future 301
Increase in applications 301
Conclusions 303
Quick fire quiz, QFQ14 303
References 303
CHAPTER 15 Organ and tissue removal, storage, and use 305
Introduction 305
Removal of tissue from deceased persons 305
Consent is required for: 305
Consent is not required for: 306
Removal of tissue from living persons 306
Removal of tissue for diagnostic purposes 306
Storage and use of tissue removed from living persons 306
Scheduled purposes (see Statute Box 15.1) 306
Code of Practice issued by the Human Tissue Authority 308
Specified purposes not requiring consent 308
Exceptions to the licensing regulations 309
Analysis of DNA (Regulation 5) 309
Exceptions to the consent provisions and the analysis of DNA 310
Transplants and the mentally incapacitated adult 310
Information to be provided by a person who has removed transplantable material from a human body 311
Best interests and organ donation 311
Present procedure 312
Donation of an organ or part organ 313
Conclusion 313
Quick-fire quiz, QFQ15 313
References 314
CHAPTER 16 The informal carer 315
Introduction 315
Definition 315
Duty of care of the informal carer 316
Could restraint be used? 317
Standard of duty of care 317
Informal carer as donee of a lasting power of attorney 317
Informal carer as a deputy appointed by the Court of Protection 318
Statutory principles and best interests 319
Decisions within their remit 319
Conflicts with statutory authorities and health and social services professionals 319
Informal carer and the Code of Practice 320
Failure by informal carer to follow the Code of Practice 320
What sanctions are available against Brenda? 321
Accountability 321
Informal carer and civil proceedings 321
Informal carer and criminal proceedings 322
Informal carers and advance decisions 322
Informal carer and research 323
Informal carer and the IMCA 323
Access to personal information and the duty of confidentiality 324
Access to personal information by the donee of an LPA or a deputy 326
Principles of confidentiality and exceptions to that duty 326
Documentation and the informal carer 326
Record keeping guidance 327
How long should any such documentation be kept? 327
Informal carer and time limits 327
Multiple issues 328
The future 328
Conclusions 329
Checklist for informal carer 329
Quick-fire quiz, QFQ16 329
References 329
CHAPTER 17 Implementation, resources, and Code of Practice 331
Introduction 331
Implementation within a hospital context 331
Training sessions and training materials on the impact of the legislation 332
Policies and procedures covering 332
Implementation of the training and policies and procedures 332
Implementation in a care home 332
Implementation for carers 333
Codes of Practice 333
Subjects covered by codes 333
Legal force of codes 334
Guidance for deputies appointed by the court 335
Procedure to be followed in the preparation of codes 335
Revision of codes 335
Assessment of capacity, supporting decision making, and best interests 335
Decision makers acting under formal powers 335
Dilemma of inclusion in the Act or Code? 335
Monitoring implementation of the Codes of Practice 336
Best practice tool 336
Implementation networks 337
Local implementation networks 337
Training materials and funds 337
Resources 337
Costs of training 338
Legal aid 338
Savings 339
Cost of possible additions to the Bill 339
Advocacy 339
Mental Health Act receivers 339
Interim procedural arrangements 340
Pilot IMCA schemes 340
Guidance from specific professional organizations and client-specific associations 340
Disagreements and complaints 341
Conclusions 341
References 342
CHAPTER 18 Wales, Scotland, and Northern Ireland 344
Introduction 344
Wales 344
Wales and the MCA 2005 345
Research 345
Loss of capacity during a research project 345
Functions of the IMCA 347
Extending the IMCA service 347
The IMCA Regulations for Wales 348
Serious medical treatment 348
The appointment of IMCAs 348
Functions of an IMCA 348
Extension of remit of the IMCA 349
Review of accommodation arrangements by NHS body or LA (care reviews) 349
Adult protection cases 349
Lasting powers of attorney 350
Deprivation of liberty safeguards 350
Local Health Boards 350
The Commissioner for Older People in Wales 350
The Court of Protection 351
Section 63: International protection of adults 351
Complaints mechanisms 351
Community health councils 351
Healthcare Inspectorate Wales 352
Care and Social Services Inspectorate for Wales 352
Public Services Ombudsman for Wales 352
Scotland 353
The Office of Public Guardian (Scotland) 353
The Mental Welfare Commission 353
Northern Ireland 354
Conclusion 354
References 354
CHAPTER 19 The future 356
References 357
Websites 358
Answers to quick fire quizzes 361
Quick fire quiz, QFQ1 361
Quick fire quiz, QFQ2 361
Quick fire quiz, QFQ3 361
Quick fire quiz, QFQ4 362
Quick fire quiz, QFQ5 363
Quick fire quiz, QFQ6 363
Quick fire quiz, QFQ7 364
Quick fire quiz, QFQ8 364
Quick fire quiz, QFQ9 365
Quick fire quiz, QFQ10 365
Quick fire quiz, QFQ11 366
Quick fire quiz, QFQ12 366
Quick fire quiz, QFQ13 367
Quick fire quiz, QFQ14 367
Quick fire quiz, QFQ15 368
Quick fire quiz, QFQ16 368
References 369
Recommended further reading 370
Index 372
EULA 376
| Erscheint lt. Verlag | 17.2.2016 |
|---|---|
| Sprache | englisch |
| Themenwelt | Geisteswissenschaften ► Psychologie ► Klinische Psychologie |
| Medizin / Pharmazie ► Medizinische Fachgebiete | |
| Medizin / Pharmazie ► Pflege | |
| Recht / Steuern ► EU / Internationales Recht | |
| Recht / Steuern ► Öffentliches Recht | |
| Recht / Steuern ► Privatrecht / Bürgerliches Recht ► Medizinrecht | |
| Sozialwissenschaften ► Pädagogik ► Sozialpädagogik | |
| Sozialwissenschaften ► Soziologie | |
| Schlagworte | consent • court of protection • deprivation of liberty safeguards • Gesundheits- u. Sozialwesen • Gesundheits- u. Sozialwesen / Recht u. Ethik • Health & Social Care • Krankenpflege • Law & Ethics in Health & Social Care • Law & Ethics in Nursing • Medical Law & Ethics • Medical Science • Medizin • Medizinrecht u. Ethik • mental capacity • mental capacity act • Mental Health • nursing • Recht u. Ethik f. Pflegeberufe • Supreme Court |
| ISBN-10 | 1-119-04535-5 / 1119045355 |
| ISBN-13 | 978-1-119-04535-9 / 9781119045359 |
| Informationen gemäß Produktsicherheitsverordnung (GPSR) | |
| Haben Sie eine Frage zum Produkt? |
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