legal definition of mental capacity

h.t. However, the Mental Capacity Act might be used to make a one-off decision about treatment or in order to compel a person with a mental illness to accept treatment for a physical condition.

When a patient refuses medical treatment, the law in the UK, the US, and Canada requires that their stated wishes be respected unless they can be shown not to be legally competent19. I do not feel that the level of service could be bettered., Martin Searle Solicitors, 9 Marlborough Place, Brighton, BN1 1UBT: 01273 609 991

Should the amount of capacity required for legal competence increase in response to the gravity of the decision that the patient faces?, This guide outlines the key principles of mental health and, P has been diagnosed with a number of conditions, including cerebral palsy and Down's syndrome and as a result he lacked the, You need to set up an LPA while you still have, But in some cases, for example where people suffer from dementia or have a profound learning disability, they may lack the, This requirement now exists in all cases and is not limited to instances where a donor has lost, He further stated that the deceased's mental state was impaired to such a degree that he was incapable of comprehending the importance of any issues before him and would not have had the, It is being introduced within the provisions of the, Eileen Loughridge a senior partner at Loughridge Bowler, in the Quadrant, says that while much has been written on the more sensational aspects of the, Dictionary, Encyclopedia and Thesaurus - The Free Dictionary, the webmaster's page for free fun content, Who looks after their interests? Where capacity is in question, the person should be assessed by a suitably qualified professional on whether they have the ability to make a particular decision at a particular time. There comes a point when someone's capacity is such that the law will regard him or her as legally competent, whatever the consequences. The question has not been widely addressed beyond the fields of philosophy and medical ethics.23,49. It held that they were: 'What matters is that the doctors should consider whether at that time he had a capacity which was commensurate with the gravity of the decision. Two other considerations seem further to affect the degree to which the level of capacity required for competence varies in response to what is at stake. No decision as to whether or not a refusal of treatment should be respected can or should be made by means of a diagram or a formula. The Mental Capacity Act allows other people to make decisions for people who lack the capacity to make these decisions for themselves. It provides case studies and explains in detail the key features of the law. Abernethy V. Compassion, control and decisions about competency. representatives should have attained certain ages; and in the case of the The site is secure. The question of whether an increase in the gravity of the consequences should produce a corresponding increase in the amount of mental capacity required for legal competence will be discussed in the first part of the paper. There are times when negative dutiesnot to injure, for instanceseem to outweigh positive duties to help others; doctors do not consider it justifiable to kill a patient, whatever the prognosis, in order that others may benefit from the transplantation of that patient's organs.39 There are other times when a chance of benefit seems more important than a higher chance of doing harm, as when a risky procedure is justified by the prospect, however slim, of a cure. Harm is then being done because their autonomous wishes are not respected. The https:// ensures that you are connecting to the All laws which regulate the capacity of persons to contract, are considered personal laws; such are the laws which relate to minority and The Mental Capacity Act also makes it clear that a lack of capacity cannot be established merely by reference to a persons age, appearance, or any condition or aspect of a persons behaviour which might lead others to make unjustified assumptions about capacity. An alternative that does reflect this status implies that current practice should change. 3d. medical negligence claims things One way in which a balancing approach might take this into account would follow Terry's analysis, whereby the 'reasonableness' of a risk depends on five elementsthe probability of harm; the value given to that harm; the probability that the goal which necessitates risking the harm will, in fact, be achieved; the value attributed to that goal; and the 'necessity' of taking the risk, given that alternative strategies may be available to achieve the same goal.43. Wicclair M. Patient decision-making capacity and risk. The Act does this by creating the roles of Attorney appointed under a Lasting Power of Attorney (LPA) and Deputy. Most decisions do not reach the courts and in those that do the judgment does not always describe the court's rationale. Raising the threshold level of capacity required for competence when the anticipated harm is greatest stems, by this argument, from a clinician's or a court's wish to be more certain.45,49 It means leaving a greater margin for error when the consequences are serious (Figure 2).50,51 Raising the threshold, of course, also increases the number of instances in which people are incorrectly assessed as not legally competent. Where there is a dispute that cannot be resolved between the professionals, the person and/or their relatives about what is in the persons best interests, the matter should be referred to the Court of Protection for the decision to be made. in these offices. This seems particularly to be the case where those decisions require the use of complex or emotionally salient information.15,39 This qualitative aspect of capacity may have contributed to a general acceptance that legal competence should be seen as applying only to the decision at hand.10,13 The implications for how doctors should respond as the stakes become higher remain to be elucidated. The Commission's report referred to a 'greater need to be certain that the patient possesses the necessary level of capacity' when the consequences for wellbeing are substantial and concluded: 'A serious disagreement about a decision with substantial consequences may appropriately trigger further evaluation. It is the power either to create or to enter into a legal relation under the same conditions or circumstances as a person of sound mind or normal intelligence would have the power to create or to enter. Not all of these have the same power in an individual case, and the relationship between them is complex. Two types of error are then available to courts and clinicians.48 An incorrect conclusion that the patient is not competent in these circumstances usually leads to their receiving the treatment that others regard as in their best interests. Burge. official website and that any information you provide is encrypted Taking Care of Strangers. These might be about property or financial affairs, such as redeeming an insurance policy or selling a house. The Ethics of Surrogate Decision Making. The Rule of Law in DoctorPatient Relations. 505; 502 P. 2d. The Mental Capacity Act is accompanied by a Code of Practice which provides more in-depth guidance for professional staff such as social workers. More important than these utilitarian considerations, however, may be the fact that a proper respect for the wishes of others is not dependent on their having any particular level of intellectual or emotional capacity. Medical commentators have referred similarly to the need for some impairment of the 'power of autonomous choice' before any treatment can be given or withheld without consent.31. Where a person does not have capacity to make decisions, the law provides safeguards and protection, including giving limited powers to third parties to take decisions on their behalf. What is the Mental Capacity Act (MCA) used for? 2 Dist. The humane running of psychiatric, medical and geriatric units where lack of capacity to make legally binding decisions is commonplace would seem to require a parsimonious approach to coercion.10,19 The House of Lords' judgment in Bournewood55 that, where a legally incompetent patient is being treated in his or her best interests and does not object, no further legal action is necessary, suggests that the courts prefer a similarly parsimonious approach to declaring someone legally incompetent. The views of relatives, the previously expressed views of the patient, the opinions of hospital staff and society's values all have a currency. and hold lands to make a contract, and the like. '1, Medical and philosophical commentators likewise recognize this proportionality.2325 The application of the principle in most cases, however, does not exclude the possibility that, at some point, it ceases to operate. Research Involving Persons with Mental Disorders That May Affect Decisionmaking Capacity. Winnick B. Competency to consent to treatment: the distinction between assent and objection. between The claimant in Re T was a Jehovah's Witness who had been given a blood transfusion when unable to give or refuse consent. What principles then govern the practice, described in Re T, whereby the level of capacity required for competence rises in proportion to what is at stake? A balancing approach also has to establish what needs to be balanced. The Mental Capacity Act 2005 (MCA) provides a framework to protect vulnerable people over the age of 16 who are not able to make their own decisions. When that process indicates that the patient understands the situation and is capable of reasoning soundly about it, the patient's choice should be accepted. The law of the domicil generally governs in cases of this kind. The Act sets out a test for assessing whether a person has the capacity to make a particular decision at a particular time. First, it is at least possible that a desire to avoid the wrong type of mistake has contributed more to the tradition of proportionality described by the Court of Appeal in Re T than has any attempt to balance autonomy and best interests. Two questions arise. The more serious the decision, the greater the capacity required. In practice, competence is only at issue when a patient decides contrary to what others regard as in their best interests. Contact us on 01273 609911, or email Legal competence, however, cannot be present to a greater or lesser extent. In: Cutter M, Shelp E, eds. Second, mental capacity has a qualitative as well as a quantitative aspect. App. CAPACITY. The Moral Limits of the Criminal Law: Harm to Self. Where a decision has to be made for a person that lacks capacity and it is made properly and following the requirements of the MCA, the person making the decision is protected from legal action. Instead of simply a mean, what is being required of doctors is a mean and standard deviation. To have capacity a person must be able to: People should be assumed to have capacity unless there is clear evidence that shows otherwise. Appelbaum P, Grisso T. Assessing patients' capacities to consent to treatment. The approach has an analogy in medical statistics. The right to die: new problems for law and medicine and psychiatry. Read more, First class service at all times. In: Cutter M, Shelp E, eds. This is a different type of harm from that of failing to act in someone's best interests. 294; Dane's Abr. Beauchamp T. Competence. The complexity of many of these questions may have limited the degree to which they have been addressed. Definitions of wellbeing refer to the risks and benefits15,26 or riskbenefit ratio41,42 of what is proposed, the level of capacity required for legal competence rising with the extent to which the risks outweigh the benefits. Any attempt rigidly to define a group of legally incompetent people is likely to have adverse consequences for patients and the care they receive.60 In Anglo-American law, however, mental capacity has a primacy which is directly relevant in cases which reach the courts and which therefore influences decisions in many which do not. Reconstructing Mental Health Law and Policy, Assessing Competence to Consent to Treatment: a Guide for Physicians and Other Health Professionals, Expert Panel Report to the National Institutes of Health (NIH). Erde extends this argument to instances where respecting a legally incompetent choice leads to some harm but where the alternative, going against the person's stated wishes, will do more harm.57 One example is the refusal of medication in circumstances where the harm of enforcing compliance exceeds the harm of the patient doing without. Berg J, Appelbaum P, Grisso T. Constructing competence: formulating standards of legal competence to make medical decisions. The inadequacy of incompetence. The usual explanation is that patient autonomy is being balanced against best interests. Wealth & Investment Management Sarah O'Hare explains the new power of attorney system, Conservatives backing city's High Court campaign, Melius est omnia mala pati quam malo concentire, Memorandum Decision of the Supreme Court, June 8, 1953, Mens testatoris in testamentis spectanda est, Mentally ill sister in law harassing family, Mercis appellatio ad res mobiles tantum pertinet, mental branch (of inferior alveolar artery), mental branch of inferior alveolar artery. Rptr. As an example, for a person with dementia there might be times of the day when they are able to think more clearly. No one can be labelled incapable on the basis of a particular diagnosis, and the second part of the capacity test must always be considered. Later in its judgment in Re B the High Court noted: 'If refusal might have grave consequences for the patient, it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences. A formal Best Interest Meeting may be needed to make decisions for more complex issues and significant changes, such as decisions about long-term care or moving into a care home. The persons wishes and feelings should be central in the decision-making process and the person should be consulted where possible. Central to any discussion of mental capacity is whether the quantity required for legal competence should vary with what is at stake for the patient. It must be determined whether the person has an impairment of the mind or the brain, or some other disturbance that affects the way their brain works, and; If so, whether the disturbance is so great that they lack the ability to make the particular decision, Understand information relevant to the decision, Use or weigh that information when making the decision; or, Someone is presumed to have capacity unless it is proved otherwise, Individuals must be supported to make their own decisions, for example with the help of counselling or medication, and be given all appropriate information before it is decided they do not have capacity, People have a right to make decisions others may see as eccentric or unwise, provided they have the capacity to make the decision, Anything done for someone without capacity must be in their best interests, Anything done for someone without capacity must be the least restrictive of their basic rights and freedoms. The usual conclusion is that it should, with the qualification that the law's approach to patient autonomy complicates the relationship. For example, someone may be quite capable of making decisions about some matters like their weekly food shop, but unable to deal with large sums of money or consent to a necessary operation. Legal competence is specific to the task at hand.10 It requires the mental capacities to reason and deliberate,15,16 hold appropriate values and goals,17 appreciate one's circumstances,18,19 understand information one is given20 and communicate a choice.15 These capacities can change over time, so medical procedures that require consent over extended periods necessitate repeated assessments.21 The law recognizes that mental capacity is a continuous quality that may be present to a greater or lesser extent.22. '1, The court had undertaken a detailed review of the patient's history and mental condition and concluded that her mental capacities were intact. This word, in the law sense, denotes some ability, power, People who cannot do this are said to lack capacity. 8600 Rockville Pike Crichton J. posttraumatic alterations imber The Court of Appeal addressed the question of whether the life-threatening circumstances were relevant to whether the patient's capacity was sufficient for the refusal to be respected. Capacity to make health care decisions: its importance in clinical practice. In deciding the second part of the test, a person will lack the capacity to make a particular decision if they cannot: If a person cannot do any one of the above things, they will lack the capacity to make the decision. Medical writers have suggested that, where gravity is extreme, doctors and courts allow their dislike of what a patient proposes to outweigh their desire to see that person's wishes respected, whatever the patient's capacity.2629 Legal writers in Britain detect an inappropriate stretching of the remit of the Mental Health Actto achieve the same result.30. FOIA 115 (1980), R v Bournewood Community and Mental Health NHS Trust ex parte L [1998] 3 All E R 289, HL. coverture.

about navigating our updated article layout. The implications for clinical practice of leaving room for error seem to be different from those that follow from balancing best interests and autonomy. An assessment must be done to ensure that the person definitely does not have capacity, before any decisions are made. Code of Practice for the Mental Capacity Act 2005, Ensuring Continued Funding for Care Following a Brain Injury, Three Big Changes in Health and Social Care Law, Brighton Business School Awards for Excellence, Understand the information that is relevant to the decision they want to make, Retain the information long enough to be able to make the decision, Weigh up the information available to make the decision, Communicate their decision by any possible means, including talking, using sign language, or through simple muscle movements such as blinking an eye or squeezing a hand, Side effects of medical treatment or a serious illness or disability, Any other mental impairment or disability. Also, carers and family members have a right to be consulted. 297 (Cal. In these circumstances, the judgment suggests, proportionality ceases to apply. Before A formal meeting can ensure that the person has the chance to have their opinions heard and recorded, and can include other relevant people as appropriate. An official website of the United States government. This applies in situations where formal arrangements have not been made for example, if a person loses capacity and has not set up a Lasting Power of Attorney or an advance decision.

629; 405 N.E. 1986), Cobbs v. Grant 8 Cal. It also provides safeguards to ensure the decisions made on behalf of a person are made in their best interests. Advocates of a 'margin-for-error' approach have to assume that it does not increase in severity in response to what is at stake or, if it does so increase, that it does not do so as much. Lotman v. Security Mutual Life Insurance Company 478 F.2d. Erde E. Breaking the shell game of consequentialism: incompetence concept and ethics. Medical and legal reluctance to intervene when a legally incompetent patient accepts treatment runs counter to the Court of Appeal (but not the House of Lords) judgment in Bournewood.66 Some will regard as too parsimonious an approach that allows a patient's lack of objection to prevent their capacity being fully assessed and appropriate safeguards put in place before decisions are made on their behalf.56. The margin-for-error approach seems to have been preferred by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research in the US. Wicclair offers the example of a five-year-old child whose parents permit him to choose what he will eat for lunch unless one of the items on the menu is life-threatening to him.56 It is possible, as the balancing and margin-for-error approaches would both allow, that the child is legally competent to make one decision but not the other. The mental capacity of a person can fluctuate. government site. Capacity relates to soundness of mind and to an intelligent understanding and perception of one's actions. The new PMC design is here! The MacArthur Studies. 303 (1992), Adults with Incapacity (Scotland) Act 2000. Culver C, Gert B. The constitution requires that the president, senators, and It also enables people to plan ahead for a time when they may lose capacity. Stone A. Informed Consent. Rptr. Checkland D. On risk and decisional capacity. Empirical research could examine the question by presenting clinicians and jurists with hypothetical cases or by observing what they do in circumstances where there is variation in the severity of what is at stake.