Assessment of Mental Capacity

Medical Association The British

Description

Doctors, lawyers and other professionals often need to make an assessment of a person's mental capacity. This book helps to support these professionals by giving them a fuller understanding of the law in all situations where an assessment of capacity may be needed, clarifying the roles of professionals and providing an aid to communication both between them and with the person being assessed. Some of those situations are covered by the Mental Capacity Act 2005, but some are covered by other tests set down by the law. Written by experts from a variety of disciplines, Assessment of Mental Capacity combines clarity as to the law with a practical, jargon-free approach to provide guidelines on issues ranging from medical treatment to making a will, sexual decisionmaking and capacity in the context of the Mental Health Act 1983. The fifth edition has been updated and expanded to include: recent case law, including the first Supreme Court case on the approach to mental capacity in the Mental Capacity Act 2005 research-based guidance about complex capacity assessment the changes to be brought in by the Mental Capacity (Amendment) Act 2019 a new chapter on supporting legal capacity, taking into account the UN Convention on the Rights of Persons with Disabilities.

Sujets

• Droit et juridique
• Mental health law

Informations

• Publié par: Law Society
• Date de parution: 29 juillet 2022
• Nombre de lectures: 0
• EAN13: 9781784462215
• Langue: English

Extrait

Assessment of Mental Capacity
FIFTH EDITION
 

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ASSESSMENT OF MENTAL CAPACITY
A Practical Guide for Doctors and Lawyers
FIFTH EDITION
 

The British Medical Association and the Law Society

General Editor: Alex Ruck Keene QC (Hon)
 
 
 
 
 

 
All rights reserved. No part of this publication may be reproduced in any material form, whether by photocopying, scanning, downloading onto computer or otherwise without the written permission of the Law Society except in accordance with the provisions of the Copyright, Designs and Patents Act 1988. Applications should be addressed in the first instance, in writing, to Law Society Publishing. Any unauthorised or restricted act in relation to this publication may result in civil proceedings and/or criminal prosecution.

The authors have asserted the right under the Copyright, Designs and Patents Act 1988 to be identified as authors of this work.

Whilst all reasonable care has been taken in the preparation of this publication, neither the publisher nor the authors can accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon its contents.

The views expressed in this publication should be taken as those of the authors only unless it is specifically indicated that the Law Society has given its endorsement.

© British Medical Association 2022

Crown copyright material is reproduced with the permission of the Controller of Her Majesty’s Stationery Office

ISBN 978-1-78446-136-2 (paperback)
ISBN 978-1-78446-221-5 (eBook)

First published 1995
Second edition 2004
Third edition 2010
Fourth edition 2015
This fifth edition published in 2022 by the Law Society
113 Chancery Lane, London WC2A 1PL

Typeset by Data Standards Ltd, Frome, Somerset
Contents
Foreword
Preface
Acknowledgements
About the authors
Table of cases
Table of statutes
Table of statutory instruments
Table of international treaties and instruments
Abbreviations
PART I: INTRODUCTION
1        The law, practice and this book
1.1        Mental capacity and the law
1.2        How to use this book
1.3        A note on language
1.4        Scope of this book
1.5        Further advice
2        Professional and ethical issues
2.1        Capacity to instruct a solicitor
2.2        Confidentiality
2.3        Creating the right environment for assessing capacity
2.4        Refusal to be assessed
2.5        People assessed as lacking capacity
2.6        Individuals at risk
2.7        Summary of points for doctors
2.8        Summary of points for lawyers
PART II: LEGAL PRINCIPLES
3        The Mental Capacity Act 2005: capacity and best interests
3.1        The legal framework
3.2        The statutory principles
3.3        Definition of mental capacity
3.4        The test of capacity
3.5        Incapacity or vulnerability?
3.6        Who assesses capacity?
3.7        Best interests
3.8        Application and exclusions
4        The legal principles: capacity and evidence
4.1        Capacity and the role of the courts
4.2        Capacity and the law of evidence
4.3        Solicitors instructing doctors
4.4        Doctors receiving instructions from solicitors
4.5        Witnessing documents
5        Supporting legal capacity
5.1        Introduction
5.2        The United Nations Convention on the Rights of Persons with Disabilities
5.3        Supporting legal capacity and the Mental Capacity Act 2005
5.4        The limits of supporting legal capacity under domestic law
PART III: LEGAL TESTS OF CAPACITY
6        Capacity to deal with financial affairs
6.1        Types of powers of attorney
6.2        Ordinary powers of attorney
6.3        Lasting powers of attorney
6.4        Enduring powers of attorney
6.5        Capacity to manage property and affairs
6.6        Capacity to claim and receive social security benefits
6.7        Protection from financial abuse
6.8        The future
7        Capacity to make a will
7.1        Introduction
7.2        Testamentary capacity: the position at common law
7.3        Delusions
7.4        The Mental Capacity Act 2005
7.5        The Law Commission – Making a Will
7.6        Supervening incapacity
7.7        The need for medical evidence: the golden rule
7.8        Instructing a medical practitioner
7.9        The duty of the will preparer to ascertain capacity
7.10      Checklist
7.11      Capacity to revoke a will
7.12      Assessment of capacity
7.13      Supported will-making
7.14      Statutory wills
8        Capacity to make a gift
8.1        Introduction
8.2        The test of capacity: the common law
8.3        The Mental Capacity Act 2005
8.4        Burden of proof
8.5        Checklist
8.6        Gifts made by attorneys
8.7        Gifts made by deputies
8.8        Risk of financial abuse
9        Capacity to litigate
9.1        Introduction
9.2        The test of capacity to litigate
9.3        Applying the test
9.4        Litigation friends
9.5        Implications of incapacity
9.6        The Court of Protection
9.7        Statutory tribunals
10      Capacity to enter into a contract
10.1      Introduction
10.2      General rules
10.3      Voidable contracts
10.4      Necessaries
10.5      Contractual capacity: impact of the Mental Capacity Act 2005
10.6      Deputies and attorneys
10.7      Checklist
11      Capacity to vote
11.1      ‘Capacity to vote’
11.2      Entitlement to vote
11.3      Legal incapacity to vote
11.4      Registration
11.5      At the polling station
11.6      Postal and proxy voting
11.7      Conclusion
12      Capacity and personal relationships
12.1      Right to form relationships
12.2      Family relationships
12.3      Sexual relationships
12.4      Capacity to consent to marriage or to enter into a civil partnership
12.5      Capacity to separate, divorce or dissolve a civil partnership
12.6      Conclusion
13      Capacity to consent: the criminal law and sexual offences
13.1      Introduction
13.2      The Sexual Offences Act 2003
13.3      Giving evidence in court
13.4      Conclusion
14      Capacity and medical treatment
14.1      Introduction
14.2      The need for patient consent
14.3      Treatment without consent
14.4      Capacity to consent to medical procedures
14.5      Care and treatment for adults who lack capacity to consent
14.6      Attorneys and deputies
14.7      Advance statements and decisions
14.8      Confidentiality and disclosure
15      Capacity to consent to research and innovative treatment
15.1      Introduction
15.2      Capacity to consent to research
15.3      Research governance: the ethical framework
15.4      Researching involving adults who lack capacity
15.5      Innovative treatment
16      Capacity and deprivation of liberty
16.1      Introduction
16.2      Deprivation of liberty: an overview
16.3      Authorising a deprivation of liberty
16.4      Capacity and deprivation of liberty
17      Capacity and the Mental Health Act 1983
17.1      Introduction
17.2      Treatment for mental disorder: MCA 2005 or MHA 1983?
17.3      Admission under MHA 1983
17.4      Mental health treatment under MHA 1983: patients who are not detained in hospital
17.5      Mental health treatment under MHA 1983: patients detained in hospital
17.6      Patients detained under MHA 1983: other decisions
PART IV: PRACTICAL ASPECTS OF THE ASSESSMENT OF MENTAL CAPACITY
18      Practical guidance for doctors
18.1      Introduction
18.2      The medical role in assessing capacity
18.3      Preparing for an assessment of capacity
18.4      The duty to ‘enhance’ mental capacity
18.5      Recording the assessment
18.6      A systematic approach to assessing capacity
18.7      The mental state in relation to capacity
18.8      Assessment tools
18.9      Retrospective assessment
19      Practical guidance for lawyers
19.1      Introduction
19.2      The practicalities of conducting a capacity assessment
19.3      The benefits of a contemporaneous assessment and file note
19.4      When the lawyer needs an expert’s view on capacity
19.5      Who should assess the person?
19.6      Psychiatric diagnoses
19.7      Medical assessment of mental conditions
19.8      General guidance
APPENDICES
A          Mental Capacity Act 2005, ss.1–6 (as amended by Mental Health Act 2007)
B          Court of Protection
C          Serious Medical Treatment Guidance [2020] EWCOP 2
D          The Official Solicitor
E          Certificate as to capacity to conduct proceedings (Official Solicitor)
F          COP3 Assessment of Capacity and Guidance Notes
G          Potential questions for assessing testamentary capacity
H          Sample letter to a GP requesting evidence of testamentary capacity
I           Sample letter of instruction to psychiatrist to assess capacity
J          Addresses
K          Further reading
Index
Foreword
The issues of impaired mental capacity are everywhere, in every walk of life, but