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CAPACITY (Statutory Law (Mental Capacity Act 2005, Human Rights Act 1998.…
CAPACITY
Statutory Law
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Human Rights Act 1998. Art 2,3,5,8, 9
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9.67 "The CoP can make a decision where there is genuine doubt/disagreement about an ADs existence, validity, or applicability. But the court does not have the power to overturn a valid or applicable AD"
5.31 "All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery."
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5.32 "the decision-maker should consider any statements that the person has previously made about their wishes and feelings about life-sustaining treatment." (as per 4 (6) of MCA 2005
4.26 temporary factors may affect someone's ability to make decisions. e.g. pain, distress, effect of med
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Legal Principles
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Must satisfy the 'functional test' (MCA 3(1)) THEN the 'diagnostic test' (MCA 2(1)). See Macdonald J in 'Sparkle' based decisions in York City Council v C (2014)
BEST INTERESTS - welfare in its widest sense (Aintree). When is it premature to say something is/isn't in their BIs (Peter Jackson J first decision in Aintree)
AUTONOMY- wishes & feelings as well as independence (see Lord Donaldson in Re T 1993). Also see 1.4 MCA and Lord Goff in Airedale NHS v Bland 1993.
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Nature, purpose and effects (Re C 1994)
Causal connection between being unable to make to make a decision AND the impairment (Macdonald J in KCH NHS FT v C 2015 'sparkle')
Academic Critique
Kirsty Keywood - goal of jurisdiction is 'to safeguard decision making, rather than to safeguard well-being per se" (courts take a facilitative not a doctoral approach. (Medical Law Review 2011)
Wicclair / Maclean: It is the complexity not the risk that should determine the level of competence required
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Law Commission [2017]: 14.51 "the establishment of a supported decision-making scheme would offer considerable benefits…" (this was not pursued by govt) .
Vanessa Raymont et al: "patients with decisional difficulties place their trust in doctors… thus, incapacity is frequently overlooked" nb. 4.45 of MCA CoPrac
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Recommendation 40: Section 4(6) of the MCA should be amended to require that best interests ascertain the persons past and present wishes and feelings (taking into account any written statement written when they had capacity), beliefs and values, and any other factors.
(Re. NHS Trust v X) "A practical difficulty would arise if it were impossible to establish definitively the cause of a particular health problem"
GMC "A patient's ability to make decisions may depend on the nature and severity of their condition, or the difficulty or complexity of the decision"
Jonathan Herring The Inherent Jurisdiction challenges the binary divide… set up in the MCA 2005…(and brings the law) close in line to the ideals in the CRPD because it discriminates less those with mental disorder and enables the law to provide a set of protective measures for those who lack autonomy. IJ is a "helpful acknowledgment" that there are some who have legal capacity under MCA, yet not able to make a properly autonomous decision"
Michael C Dunn et al In the cases where the IJ is used, the adults are 'situationally vulnerable' and there is the presence of a 'villain'. This 'villain' is usually a family member. Placing restrictions on them re. this family member might have 'a deleterious effect on that person's QOL in the long term"
Emma Cave It could constitute neglect by the dr if they ought to have approached the court to exercise its IJ in order to facilitate a voluntary decision (e.g. a pt who refuses treatment for an injury by command of an abusive partner)
Jillian Craigie and Ailsa Davies "Anorexia looks much more like substance dependency than pneumonia or appendicitis…On the other hand… anorexia develops in the pursuit of things that our society values"
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