3. The Old Common Law
Patient has capacity
• Treatment requires their consent.
Patient lacks capacity
• The clinician is under a duty to give
treatment which is necessary to
preserve the patient’s life, health or
well-being; and is in their best
interests.
4. Mental Capacity Act
Patient has capacity
• Treatment requires their consent.
Patient lacks capacity
• The MCA applies whenever you wish
to give care or treatment to an
incapacitated person outside the
Mental Health Act.
5. MHA and MCA patients
MHA RULES MCA RULES
Treatment for mental disorder Treatment for mental disorder
• Section 2 patients • Informal patients
• Treatment order patients • Short-term sections
• CTO patients • Guardianship
• Conditional discharge
• Section 35
• Prison medical units
+ Treatment for physical health,
e.g. heart condition
6. Who lacks capacity?
For the purposes of the Act, a person lacks
capacity in relation to a matter ‘if at the
material time he is unable to make a
decision for himself in relation to the matter
because of an impairment of, or a
disturbance in the functioning of, the mind
or brain.’ (s.2)
It does not matter whether the impairment
or disturbance is permanent or temporary.
How does this provision affect people suffering from schizophrenia or mania?
Section 2
7. Statutory Principles
The following principles apply for the purposes of the Act:
of
1.
1. A person must be assumed to have capacity unless it is established that he
be to it is he
lacks capacity;
2.
2. A person is not to be treated as unable to make a decision unless all
is to be as to
practicable steps to help him to do so have been taken without success;
to to do so
3.
3. A person is not to be treated as unable to make a decision merely because
is to be as to
he
he makes an unwise decision;
an
4.
4. An
An act done, or decision made, under the Act for or on behalf of a person
or or on of
who lacks capacity must be done, or made, in his best interests;
be or in
5.
5. Before the act is done, or the decision is made, regard must be had to
is or is be to
whether the purpose for which it is needed can be as effectively achieved
it is be a s
in
in a way that is less restrictive of the person’s rights and freedom of action.
is of of
Section 1(1)
8. Best Interests
The person determining what is in the individual’s best interests must consider all the
relevant circumstances and, in particular, must
1. Consider whether it is likely that the person will at some time have capacity in relation to
the matter in question and, if it appears likely that he will, when that is likely to be;
2. So far as reasonably practicable, permit and encourage the person to participate, or to
improve his ability to participate, as fully as possible in any act done for him and any
decision affecting him.
3. Consider, so far as is reasonably ascertainable, the person’s past and present wishes and
feelings (and, in particular, any relevant written statement made by him when he had
capacity); the beliefs and values that would be likely to influence his decision if he had
capacity; and the other factors that he would be likely to consider if he were able to do so.
Section 4
9. Best Interests (2)
4. Take into account, if it is practicable and appropriate to consult them, the views as to
what would be in the person's best interests and, in particular, as to the matters
mentioned in paragraph (3) immediately above of anyone named by the person as
someone to be consulted on the matter in question or on matters of that kind; anyone
engaged in caring for the person or interested in his welfare; any donee of a lasting
power of attorney granted by the person; and any deputy appointed for the person by the
court.
5. Not be motivated by a desire to bring about his death where the determination relates to
life-sustaining treatment and considering whether the treatment is in the best interests
of the person concerned. (“Life-sustaining treatment” means treatment which in the
view of a person providing health care for the person concerned is necessary to sustain
life.)
Section 4
11. Making decisions — New Mechanisms
ADVANCE DECISION
Require
capacity
LPA DONEE
MAKING DECISIONS
COURT OR DEPUTY
USE OF SECTION 5
12. Advance decisions
DEFINITION OF AN ‘ADVANCE DECISION’
An “Advance decision” is a decision made by an adult
with capacity that if:
(a) at a later time a specified treatment is proposed to
be carried out by a person providing health care, and
(b) at that time he lacks capacity to consent to that
treatment,
the specified treatment is not to be carried out or
continued.
Section 24
13. Is the advance decision binding?
Incapacity Validity Applicability
Not binding if at the material Not binding if not valid. Not binding if not applicable to the
time the person who made it Not valid if s/he withdrew the treatment. Not applicable if:
still has capacity to give or advance decision at any time (i) the treatment is not the treatment
refuse consent to the when s/he had capacity to do so, specified in the advance decision;
treatment being proposed; or has done anything else clearly (ii) any circumstances specified in
inconsistent with the advance the advance decision are absent; or
decision remaining her/his fixed (iii) there are reasonable grounds for
decision. believing that circumstances exist
which the person did not anticipate
at the time of the advance decision
and which would have affected
her/his decision.
Life-sustaining treatment
An advance decision is not applicable to life-sustaining treatment unless it is verified by a statement to the
effect that it is to apply to that treatment even if life is at risk, and the decision is in writing, signed and
witnessed.
14. Lasting Power of Attorney
A lasting power of attorney is a power of
of is of
attorney under which the donor ("P") confers on
on
a donee or donees authority to make decisions
or to
about all or any of the following:
or of
P’s personal welfare or specified matters
or
concerning P's personal welfare, and
LPA
Personal Welfare
P’s property and affairs or specified matters
or
concerning P's property and affairs,
Property
Affairs
and which includes authority to make such
to
decisions in circumstances where P no longer
in no
has capacity.
Section 9
15. Supporting the Judges
The Public Guardian
The Judges are supported by Deputies
Court of Protection Visitors
16. Power to make declarations
The court may make declarations as to:
whether a person has or lacks capacity to
make a decision specified in the declaration;
whether a person has or lacks capacity to
make decisions on such matters as are DECLARATIONS
described in the declaration; As to
the lawfulness or otherwise of any act done, or Capacity
yet to be done, in relation to that person. Lawfulness
ACTS & OMISSIONS
The term “Act” includes an omission and a
course of conduct.
Section 15
17. The Court’s Section 16 Powers
Matter concerning personal
welfare or property and Decisions about where to live
affairs
Person lacks capacity in
relation to it
Decisions about contact
Court may by order decide
the matter or appoint a
deputy to make decisions
Decisions about medical treatment
18. Powers: Personal Welfare
Subject to section 20 (restrictions on deputies),
the powers under section 16 as respects P’s
personal welfare extend in particular to:
deciding where P is to live; Decisions about where to live
deciding what contact, if any, P is to have with
any specified persons;
making an order prohibiting a named person
from having contact with P;
Decisions about contact
giving or refusing consent to the carrying out or
continuation of a treatment by a person
providing health care for P;
giving a direction that a person responsible for
P's health care allow a different person to take
Decisions about medical treatment
over that responsibility.
Section 17
19. Draft Code of Practice Example
Having spent most of her childhood in The authority applies to the
care, a young woman with learning court for a deputy to be
disabilities, lacks the capacity to decide appointed to make
where she should live and goes to live with decisions about the
her father when she becomes 18. woman’s future care and
Staff at the day centre she attends notice welfare.
that she is becoming increasingly The court is likely to make
disturbed and often has bruises on her a range of orders including
arms and legs. They arrange for her to be declarations that it is
seen by a doctor who finds signs of lawful for the local
physical and sexual abuse. The father authority to remove and
denies this and criminal proceedings house the young woman in
against him fail for lack of evidence. supported accommodation,
The local authority social services try to together with an order
persuade him that a move to independent regulating contact with the
supported housing would be in his father.
daughter’s best interests, but he objects.
21. Liability for care or treatment
THE SECTION 5 PRINCIPLE
Where the section 5 conditions are satisfied, a person who
does an act “in connection” with an incapacitated person’s
an an
care or treatment is regarded as having the incapacitated
or is as
person’s consent for the act.
The person doing the act will only incur a legal liability if
if
her/his act would have been unlawful if done with consent.
if
Negligent acts are not protected.
Section 5
22. The 5 Section 5 Conditions
1 The act is one undertaken ‘in connection with’ another’ person’s care or
treatment;
2 The person doing it takes reasonable steps to establish whether the recipient
has capacity;
3 S/he reasonably believes that the recipient lacks capacity;
4 S/he reasonably believes that it is in their best interests for act to be done;
5 If s/he uses restraint, s/he reasonably believes BOTH that it is necessary to do
the act in order to prevent harm to the person and that the act is a
proportionate response to the likelihood of their suffering harm and the
seriousness of that harm.
DEFINITION OF RESTRAINT
For these purposes, a person restrains another person if he (a) uses, or threatens to use, force to secure the
doing of an act which s/he resists, or (b) restricts their liberty of movement, whether or not they resist.
23. Detention and section 5
Deprivation of liberty
The person doing the act does Restriction √
more than merely restrain the of liberty
other person if s/he deprives that
person of his liberty within the
meaning of Article 5(1) of the
Human Rights Convention, Deprivation X
whether or not D is a public
of liberty
authority.
Section 6
24. Whether deprived of liberty?
‘The Court considers the key factor ‘The concrete situation was that the
in the present case to be that the applicant was under continuous
health care professionals treating supervision and control and was
and managing the applicant not free to leave. Any suggestion to
the contrary was, in the Court's
exercised complete and effective
view, fairly described by Lord Steyn
control over his care and movements as “stretching credulity to breaking
from the moment he presented acute point” and as a “fairy tale”.’
behavioural problems on 22 July
1997 to the date he was
compulsorily detained on 29
October 1997.’
Bournewood Case (ECHR)
25. Scenarios
A naso-gastric tube is inserted in order to
treat an informal patient who suffers from
anorexia nervosa.
Is this act protected under the Mental
Capacity Act?
26. Scenarios
Ms Fox has a profound learning disability and
epilepsy. She is being cared for in a residential
care home. Sometimes restraint is necessary to
get her to take medication. Is this lawful?
Ms Fox returns home at weekends. Can her
parents use restraint where this is necessary in
order to get her to take her medication?
29. Children aged 16 and 17
Family Law Reform Act 1969
8.—(1) The consent of a minor who has attained
of
the age of sixteen years to any surgical, medical or
of to or
dental treatment which, in the absence of consent,
in of
would constitute a trespass to his person, shall be
to be
as
as effective as it would be if he were of full age; and
as it be if he of
where a minor has by virtue of this section given an
by of an
effective consent to any treatment it shall not be
to it be
necessary to obtain any consent for it from his
to it
parent or guardian.
or
30. Parental authority
A parent’s rights are not
extinguished when their
child reaches 16. They are
only extinguished when the
child ceases to be a child,
upon reaching the age of 18.
A parent may consent to
treatment being given to a
child aged 16 or 17, even
where the child has refused
to give their own consent.
31. Children aged 15 and under
Before such a child can be considered
competent to consent to treatment, s/he
must be able to appreciate:
what the treatment is and why s/he
needs it
the risks involved in not receiving the
treatment
the benefits involved in receiving the
treatment
the nature of the treatment in broad
terms.
32. Who may consent to treatment
Patient’s consent Parental consent
ADULT (18 years+) • Y es • No
AGED 16–17 • Y es • Y es
• If “Gillick-
AGED 15 or less competent” • Y es
33. The High Court
There is now ample authority for the
proposition that the inherent powers
of the court under its parens patriae
jurisdiction are theoretically limitless
and they certainly extend beyond the
powers of the natural parent. The
court does have the power to override
the refusal of a minor, whether over
or under 16, and even if ‘Gillick-
competent’.
Lord Donaldson, MR in Re W [1992]
35. MHA: Children aged 16 and 17
Family Law Reform Act Mental Health Act 1983
1969
131.—(2) Subsections (3) and (4) below apply in in
8.—(1) The consent of a minor
of the case of a patient aged 16 or 17 years who has
of 16 or 17
who has attained the age of of capacity to consent to the making of such
to to of
sixteen years to any surgical,
to arrangements as are mentioned in subsection (1)
as in
medical or dental treatment
or above.
which, in the absence of
in of (3) If the patient consents to the making of the
If to of
consent, would constitute a arrangements, they may be made, carried out
be
trespass to his person, shall be
to be and determined on the basis of that consent
on of
as
as effective as it would be if he
as it be if he even though there are one or more persons who
or
were of full age; and where a
of have parental responsibility for him.
minor has by virtue of this
by of (4) If the patient does not consent to the making
If to
section given an effective
an of
of the arrangements, they may not be made,
be
consent to any treatment it
to it carried out or determined on the basis of the
or on of
shall not be necessary to obtain
be to consent of a person who has parental
of
any consent for it from his
it responsibility for him.
parent or guardian.
or
36. MHA : ECT — Patients with capacity s58A
PATIENTS WITH CAPACITY
Child with capacity Children, other than those subject to a CTO, SOAD certifies
consents to ECT including children who are informal patients, their consent and
who have capacity to make their own also that ECT is
(Section 2 patients, decision and consent to having ECT appropriate
those on treatment
orders and informal
patients)
Child with capacity Children, other than those subject to a CTO, ECT may not be
refuses consent including children who are informal patients, given under s.58A
who have capacity but who refuse to
(Section 2 patients and consent to ECT
those on treatment
orders and, in the case
of children, informal
patients)
37. ECT — Patients without capacity s58A
PATIENTS WHO LACK CAPACITY
Child on a relevant Children detained SOAD certifies that patient is not capable and
section who lacks under section 2 or for that ECT is appropriate.
capacity to consent treatment who are
to ECT not capable of
understanding the
(Section 2 patients nature, purpose and
and those on likely effects of ECT
treatment orders)
Child who is an Children who are not SOAD certifies that patient is not capable and
informal patient detained under that ECT is appropriate and, in addition,
lacks capacity to section 2 or for there is authority to give the treatment to an
consent to ECT treatment, or subject informal child patient, e.g. parental consent
to a CTO, and are not or authority under section 5 of the MCA
capable of 2005.
understanding the
nature, purpose and
likely effects of ECT
38. Who may consent to treatment
Patient’s consent Parental consent
ADULT (18 years+) • Y es • No
• Y es • Yes but …
AGED 16–17
ECT/MHA adm ission
• If “Gillick-
AGED 15 or less competent” • Y es
39. New MCA Mechanisms — Children
ADVANCE DECISION
Must be 18
Years Old
LPA DONEE
MAKING DECISIONS
COURT OR DEPUTY
Must be
16,17
USE OF SECTION 5
40. 16 & 17 Year Olds
Only an adult only make an ADVANCE DECISION or an LPA. Therefore, only two of
the four mechanisms in the MCA apply to children aged 16 or 17: The Court of
Protection/Deputy mechanisms and section 5.
These mechanisms, of course, only apply where there is some “mental incapacity,”
because children aged 16 or 17 are presumed to be able/sufficiently mature to give the
same consent as an adult.
A case relating to a 16 or 17 year old who lacks capacity could, potentially, be heard
to 16 or 17 be
either in the Family Division of the High Court or in the Court of Protection.
in of o r in of
It
It would, however, not make sense to require two sets of legal proceedings to be
to of to b e
conducted within a short period of time where the problems arising from the young
of
person's lack of capacity are likely to continue after aged 18. It may be more
of to 18 It be
appropriate for the Court of Protection to hear those cases, while one-off cases, such
of to
as
as those relating to urgent medical treatment for a 16 or 17 year old lacking capacity
to 16 or 17
to
to consent, may be referred to the Family Division of the High Court.
be to of
41. Those under 16
Section 2(5) of the Mental Capacity Act makes it clear that the powers
of it
under the Act generally only arise where the person lacking capacity isis
aged 16 or over.
16 or
Subject to section 18(3), “No power which a person may exercise under
to 18 ),
this Act … is exercisable in relation to a person under 16.”
is in to 16
As to
As to section 18(3), this extends the powers of the Court of Protection
18 ) , of of
to
to make decisions concerning the property and affairs of a person
of
under 16 where the court considers it is likely that the person will still
16 it is
lack capacity to make decisions in respect of the matters in question,
to in of in
after reaching the age of 18.
of 18
Other disputes concerning persons aged under 16 must be resolved
16 be
under the Children Act 1989, the inherent jurisdiction of the High
of
Court or by way of the Mental Health Act 1983.
or by of
42. Children — Significance of MCA
If
If a child aged 16 or 17 lacks capacity to make a decision for themselves “because of
16 or 17 to of
an
an impairment of, or a disturbance in the functioning of, the mind or brain”, the
or in or
Court of Protection procedures are available, as is section 5 in relation to their care or
of as is in to or
treatment.
In
In terms of care and treatment decisions, the alternatives are: (1) parental consent;
of
(2) Mental Health Act 1983; (3) High Court inherent jurisdiction/ wardship; (4)
Children Act 1989, e.g. secure accommodation order.
Because there are a range of existing alternatives, does section 5 therefore add
of
anything useful for the practitioner? The short answer is that it may provide clearer
is it
protection from legal liability for staff providing care or treatment to a person aged
or to
16 or 17
16 or 17. Furthermore, it may be an adequate solution where the 16/17 year old child
it be an 16 17
is
is unable to consent to informal care or treatment by reason of mentally incapacity
to to or by of
and her/his parents are unwilling to consent to that treatment.
to to
43. Who may consent to treatment
Patient’s consent Parental consent
ADULT (18 years+) • Y es • No
• Y es • Yes but …
AGED 16–17
•Consider s.5, MCA ECT/MHA adm ission
• If “Gillick-
AGED 15 or less competent” • Y es
45. CHILDREN ACT 1989 ORDERS
Order/authority Sect Power Statutory criteria
.
Police s.46 A power enabling a constable to remove a 46.—(1) Where a constable has reasonable
protection child to suitable accommodation or to take cause to believe that a child would otherwise
steps to ensure that the child is not removed be likely to suffer significant harm he may—
from any hospital in which s/he is being (a) remove the child to suitable
accommodated. accommodation and keep him there; or
LA must be informed and must make (b) take such steps as are reasonable to ensure
necessary inquiries to decide whether they that the child's removal from any hospital, or
should take action to safeguard or promote other place, in which he is then being
the child’s welfare. accommodated is prevented.
Designated officer shall allow parents to have
such contact (if any) as is reasonable and in
the child’s best interests. Designated officer
may apply for an EPO (see below).
Maximum duration of 72 hours.
Emergency s.44 An order directing the production of a child Unless there have been problems gaining
protection and authorising either their removal to access to a child, the court may make the
order accommodation provided by or on behalf of o rd e r i f, b u t o n l y i f, i t i s s a t i s fi e d t h a t —
the applicant or the prevention of the child's (a) there is reasonable cause to believe that
removal from hospital. the child is likely to suffer significant harm
A court making such an order may give i f—
directions with respect to the psychiatric (i) he is not removed to accommodation
examination or assessment of the child provided by or on behalf of the applicant; or
(s.44(6)). (ii) he does not remain in the place in which
Maximum initial duration of 8 days, but may he is then being accommodated.
be extended for a further 7 days.
46. CHILDREN ACT 1989 ORDERS
Order Sect. Power Statutory criteria
Local s.47 A local authority may be under a 47.—(1) Where a local authority—
authority duty to make enquiries to enable (a) are informed that a child who lives, or is found,
enquiries them to decide whether they should i n t h ei r area—
take any action to safeguard or (i) is the subject of an emergency protection order;
promote a child's welfare. or
(ii) is in police protection; or
(b) have reasonable cause to suspect that a child who
lives, or is found, in their area is suffering, or is
likely to suffer, significant harm,
the authority shall make, or cause to be made, such
enquiries as they consider necessary to enable them
to decide whether they should take any action to
safeguard or promote the child’s welfare.
Child s.43 An order authorising a child's The court may make the order if, but only if, it is
assessment assessment, e.g. a psychiatric s a t i s fi e d t h a t —
order examination or assessment. (a) the applicant has reasonable cause to suspect that
A court may treat the application as the child is suffering, or is likely to suffer,
an application for a child protection significant harm;
order, and no court shall make a (b) an assessment of the state of the child’s health or
child assessment order if satisfied development ... is required to enable the applicant to
that there are grounds for making an determine whether or not the child is suffering, or is
emergency protection order and that likely to suffer, significant harm; and
it ought to make such an order. (c) it is unlikely that such an assessment will be
Maximum duration of 7 days. made, or be satisfactory, in the absence of an order
made under this section.
47. CHILDREN ACT 1989 ORDERS
Order/authority Sect. Power Statutory criteria
Interim care s.38 An order made upon adjourning an 38.—(2) A court shall not make an interim
order application for a care order or supervision care order or interim supervision order under
order — the court may give directions this section unless it is satisfied that there are
with regard to a psychiatric examination or reasonable grounds for believing that the
assessment (s.38(6)). Maximum initial circumstances with respect to the child are as
duration of 8 weeks with renewals of 4 mentioned in section 31(2) (see below)
weeks at a time.
Interim s.38 An order made upon adjourning an
supervision application for a care order or supervision
order order — the court may direct that the child
should undergo a psychiatric examination
or assessment (s.38(6)). Maximum initial
duration of 8 weeks with renewals of 4
weeks at a time.
