Abstracts
The Mental Capacity Act 2005: Ten Years On
The Health Law & Regulation Unit, University of Liverpool
Abstracts
Nicola Glover-Thomas, University of Manchester (Nicola.glover-thomas@manchester.ac.uk ) & Paul Skowron, University of Manchester (paulskowron@postgrad.manchester.ac.uk )
Substituted Decision-Making and Meno’s Paradox: An Enduring Challenge under the Mental Capacity Act 2005?
“[A] man cannot search for what he knows or what he does not know… He cannot search for what he knows – since he knows it there is no need to search – nor for what he does not know, for he does not know what to look for” (Plato, Meno, 80e)
Article 12(3) of the CRPD requires States to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. This entails a shift away from substituted decision-making for people who are assessed as lacking mental capacity. Instead, support frameworks that assist the person to, where possible, make their own decision should be developed (Quinn, G., 2010).
Nevertheless, and despite this shift in the debate, a version of Meno’s Paradox still emerges: how can an individual request support when they need support to even allow them to identify that they need decision-making support? Although supported decision-making will be sufficient for those who recognise that they need it, it is hard to see how it can be enough for those caught in this paradox.
Despite this, the Mental Capacity Act 2005, our current system of substituted decision-making, is insensitive to the paradox. Those who recognise that they need support can, if they lack capacity, have best interests decisions made for them that override their beliefs about what support they need. At the same time, those who do not recognise that they need support can have best interests decisions made for them without being helped to develop their own ability to recognise their needs.
Although guidance (Department for Constitutional Affairs, 2007) emphasises that adequate support should be given, a failure to involve service users is well documented (Goldsmith et al., 2008; Froggatt et al., 2009; Ahmed et al., 2011). Various practical challenges (Foy 2007; Karp 2009) may be partially responsible for this; but, with reference to the case law, this paper demonstrates that some of the problem lies with the legislative framework itself. The paper argues that the Act’s insensitivity to Meno’s Paradox makes it more difficult for those making decisions for incapacitated adults to truly support them to develop their capabilities, thus making the notion of supported decision making mere rhetoric.
Best Interests and Personal Autonomy in Health Care Law: Two Separate Ideas?
John Coggon, University of Southampton, UK
‘Best Interests and Personal Autonomy in Health Care Law: Two Separate Ideas?’
This paper looks at the developing legal doctrine on the relationship between respecting the values of patients who have, and those who lack, decision-making capacity. Starting from the influential analysis of Baker J in paragraph 81 of the case, heard in the Court of Protection, of W v M & Ors [2011] EWHC 2443 (Fam), [2012] 1 All WE 1313, I evaluate, and ultimately disagree with, the idea that:
[W]hile any decision maker, including a judge, is under an obligation to consider P’s wishes and feelings, and the beliefs, values and other factors that he would have taken into account if he had capacity, the decision must be based on P’s best interests and not on what P would have decided if he had capacity. Like Lewison J… I agree with the observation in the explanatory notes to the original Mental Capacity Bill (which in turn echoed the observation of Lord Goff in the Bland case…) that “best interests is not a test of ‘substituted judgement’ (what the person would have wanted), but rather it requires a determination to be made by applying an objective test as to what would be in the person’s best interests.” This is confirmed by the Code of Practice at paragraph 5.38[.]
I will argue that the most convincing reading of the law is that best interests may indeed obtain in finding what the patient would have decided, and furthermore that there are good ethical reasons for wishing the law to be thus.
Alex Ruck Keene (alex.ruckkeene@39essex.com), Neil Allen (neil.allen@manchester.ac.uk) and Prof Peter Bartlett (peter.bartlett@nottingham.ac.uk )
“(Re)presenting P before the Court of Protection”
Since 2007, the Court of Protection has served as the ultimate decision-maker in difficult cases involving capacity and best interests across the spectrum of human activity. Judges of the Court have made decisions affecting all aspects of the lives of those without the material capacity and, in some instances, decisions having the effect that those lives will come to an end. It is therefore, striking, that default position in the court’s rules is that the person concerned – P – will not be a party to those proceedings. Further, even where P is joined as a party to proceedings, the basis upon which they are represented by their litigation friend was not spelt out in the court’s rules (or, indeed, anywhere else), and the case-law reveals a substantial confusion as to the duties of a litigation friend. The result has been dramatic – and inappropriate – inconsistency in the way P has participated in proceedings.
In this article, Peter Bartlett, Neil Allen and Alex Ruck Keene provide a critical analysis of the ways in which P has been presented, represented and misrepresented before the Court of Protection, examine the relevant principles that can be derived from the European Convention on Human Rights and the Convention on the Rights of Persons with Disabilities, and then set out a framework for an approach that seeks to ensure that the subject of the proceedings is not treated as a mere object.
Emma Cave (emma.cave@durham.ac.uk)
Minding the Gaps: The Mental Capacity Act, Children and Mental Health
ABSTRACT The Mental Capacity Act was scrutinised in a House of Lords Select Committee report in 2014, which concluded that, whilst the principles of the Act are well supported, a raft of measures is urgently needed to improve poor understanding and implementation of the empowering ethos of the Act. Some people who are capable of supported decision-making are instead subjected to the decisions of others. The Act is one of a number of laws governing decisions to consent to and refuse medical treatment. As problematic as the failure to comply with the terms of the Act is the exclusion of some groups from its remit. Implementation of the Act, and compliance of our laws with human rights (and the UN Convention on the Rights of Persons with Disabilities in particular), is dependent upon a broader commitment to empowerment. This paper considers how this might be achieved.
Mary Donnelly (m.donnelly@ucc.ie)
Utopian Ideals and Epistemic Imperfections: Exploring the Scope of Supported Decision-Making
This paper will juxtapose the novelty of the MCA with the more radical steps which appear to be required under Article 12 of the Convention on the Rights of Persons with Disabilities. It will explore the challenges to both models posed by inevitable epistemic imperfections and will develop the argument that legal frameworks in respect of persons with diminished capacity must temper human rights idealism with a grounded awareness of realities in practice.
John Fanning (lw0u4188@liverpool.ac.uk )
Intensifying the Risk Agenda: The Impact of the Deprivation of Liberty Safeguards on the Mental Health Act
Ten years have passed since the United Kingdom’s Mental Capacity Act (‘MCA’) came into force. While there can be no doubt that the MCA has transformed clinical decision-making in England and Wales, it has at times endured a tricky relationship with the Mental Health Act (‘MHA’). In 2007, Parliament complicated their relationship further by introducing the Deprivation of Liberty Safeguards (‘DOLS’). Ostensibly designed to plug the “Bournewood gap”, the Safeguards have been roundly criticised for complicating the mechanics of mental health law. This paper argues that much of this criticism is misconceived. While it is true that the DOLS were poorly-drafted and oddly placed as a Schedule to the MCA, they have in effect clarified the role and purpose of the MHA. By distinguishing between informal and formal patients, the DOLS have intensified the significance of risk as the key trigger to compulsory admission under the MHA and have in effect reinforced the boundary between the two statutes. Ten years after the MCA came into force, the tension between it and the MHA may finally have been resolved.
Gordon Ashton OBE (ashton.grange@btinternet.com)
"The Mental Capacity Act 2005 - The next 10 Years"
What does the Act say? How are the Judges interpreting this? Does this comply with International expectations in the form of the European Convention on Human Rights and the UN Convention on the Rights of Persons with Disabilities? If not, how may it be made to do so? The Court of Protection too is facing challenges with the virtual withdrawal of Legal Aid and the allegation that it is a secret court. Does it provide access to justice for those who really need it?
Our ‘new’ jurisdiction was ground-breaking in its day but has now reached the cross-roads. How will it look in 10 years time? Will it still be a leading jurisdiction in this field?
Kirsty Keywood (kirsty.keywood@manchester.ac.uk)
Vulnerability and Mental Capacity: Paradoxes and Paradigms
This paper explores the intersection of mental capacity law with adult safeguarding law and policy, with particular focus on vulnerability - a concept which is undergoing considerable academic interrogation. I suggest that the concept of vulnerability provides a more expansive and intellectually credible account of the challenges faced by decision makers than that of mental incapacity as it is currently framed and interpreted. I reflect on the implications of a vulnerability-informed analysis of the MCA and its compatibility with the UNCRPD.
Beverley Clough (Beverly.clough@liverpool.ac.uk)
Vulnerability and Capacity to Consent to Sex- Drawing the Boundaries
This presentation seeks to explore the way in which the framework for assessing mental capacity to consent to sex frames the boundaries of the legal approach. The case law in this area illustrates how the focus is primarily on the mental capacity of the person concerned and their particular abilities, often in terms of their ability to understand information (seen most recently in IM v LM [2014] EWCA Civ 37). Through engaging with the burgeoning literature on vulnerability, the presentation will consider whether a more nuanced and relational understanding of sexual consent might elucidate the relevant concerns more clearly. The legal claim that setting a low threshold for capacity respects sexual autonomy will be challenged, and it will be contended that such an approach risks leaving people vulnerable to abuse. It will be suggested that the current legal approach is not responsive to the various sources of vulnerability which ought to be addressed in order to secure sexual autonomy in this area. It will be questioned whether the Mental Capacity Act 2005 is a suitable arena within which to respond to concerns illuminated by insights from vulnerability theory. Framing the questions in terms of mental capacity and non-interference prevents a more responsive legal approach which is attentive to the ways in which sexual autonomy can be facilitated. Rather than being a conflict between intervention and autonomy (as is portrayed in the mental capacity case law), the real issue is whether the legal responses available to the state at present are sufficient to facilitate and secure sexual autonomy. Finally, the importance of addressing these issues and seeking out more responsive legal approaches in this area will be situated within current debates about our obligations under the UNCRPD.
David Horton (D.Horton@liverpool.ac.uk) and Gary Lynch Wood (gary.lynch-wood@manchester.ac.uk)
Connecting Mental Capacity and Health Care Regulation: Is the Framework Right?
The Mental Capacity Act 2005 provides protection for people who lack capacity to make decisions about medical care and where to live. Since its enactment, the increasing role of the private sector in health and social care is endangering this protection. Financial pressures and other political motives have led to local authorities outsourcing more health care work to private providers. Some providers have failed to fulfil their agreements due to costs; private residential care homes accommodate many people who lack capacity but the business of caring for vulnerable people is challenged by the profit motive. This paper considers the regulatory framework supporting the provision of care. It suggests the framework that governs the relationship between private providers and local authorities has tilted the emphasis away from supporting patients towards overtly economic considerations, thus undermining the protection provided by the MCA. The paper makes a case for ‘tilting’ the regulatory framework back towards the philosophy of the MCA.
Professor Jean McHale (J.V.McHale@bham.ac.uk )
The Mental Capacity Act 2005 Ten Years On: Lessons Learnt and Lost
The Mental Capacity Act 2005 was a landmark piece of legislation introduced after careful considered reform. It provided greater clarity and certainty concerning decision making in relation to those lacking mental capacity, it enabled those who were concerned about future decisions and the onset of mental incapacity to make decisions about their future. It was introduced after much publicity and training of health care professionals. A decade on however the House of Lords Select Committee report (House of Lords Select Committee on the Mental Capacity Act: Mental Capacity Act 2005, Post Legislative Scrutiny HL 139 (2014)) reflecting on the legislation makes somewhat disconcerting reading. Rather than an embedded comprehensible piece of legislation the real impact of the Act in practice is thrown into question if levels of awareness of its implications are, as indicated in this Report, so low amongst health care professionals, patients and families themselves. This paper explores just how far we have come since the landmark decision of Re F in 1990 and the Mental Incapacity Report of the Law Commission in 1995. It scrutinises the House of Lords Select Committee Recommendations and explores what lessons have been learnt and lost in the decade since implementation of the Mental Capacity Act. It asks whether ultimately what is needed is continued oversight of the operation of the legislation and it explores the case for a Mental Capacity Act Review Commission.