233 9 Mental Capacity Introduction The principle of autonomy plays a fundamental role in English law and, indeed, frequent references to this principle can be found throughout the book. It is at the heart of human rights, so much so that, according to one respected theory, those who are unable to exercise autonomy do not have human rights.1 This chapter will explore the importance of autonomy to the law and its relationship with mental capacity; and how the law deals with those who lack mental capacity. These issues are greatly illuminated by the life
Introduction Issues arise in practice when professionals attempt to balance the emancipatory principles of the Mental Capacity Act 2005 (MCA) alongside the statutory provisions of the Mental Health Act 1983 (MHA), particularly when detention and compulsion under the MHA is being considered. Being assessed as lacking the mental capacity to decide on one’s own care and treatment is not an element of the statutory criteria for detention under the MHA. Essentially, this means a person who is assessed as having a mental disorder but has the mental capacity to
4 Mental capacity and adult safeguarding Chapter aim In this chapter we will explore the crucial interaction between decision making and adult safeguarding in the context of practice using the Mental Capacity Act 2005. We will consider the crucial and often complex role played by the Act in supporting decision making or making substitute decisions in the person’s best interests. • What is the Mental Capacity Act 2005 and how does it apply to adult safe- guarding practice? • Advocacy, representation and autonomy in adult safeguarding; • risk and mental
Introduction Mental capacity law in Hong Kong, much like most areas of law pertaining to those with mental disability, is riddled with deficiencies, both in terms of its theoretical basis and the problematic values that underpin its regimes. 1 This chapter examines the latter, exploring in particular the role of the subjective values of the individual without capacity, as well as the participation of such individuals in hearings granting the power to make decisions on their behalf. The chapter begins with a brief introduction to the two key mental capacity
Introduction Indigenous peoples with disabilities are extremely vulnerable when interacting with Canadian mental capacity law. They are disproportionately at risk of experiencing barriers to accessing justice, undermining their cultural values and Charter-protected rights of autonomy, medical self-determination and equality. There is a dearth of research addressing the values underlying supported decision-making and substitute decision-making for Indigenous communities in Canada. This chapter analyses the legal framing of mental capacity in Canada and the
safeguarding, particularly when supporting individuals with learning difficulties, under the umbrella of the MCA, and wider legislation, as well as Court of Protection rulings that have developed thinking from Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 and Re B (Capacity: Social Media: Care and Contact) [2019]. The challenges of adult online safeguarding: the Mental Capacity Act 2005 One of the challenges we have observed, having worked for many years with professionals in the online safeguarding arena, is the practicalities
Introduction This volume has taken an international approach to learning about, and critically exploring, how legal systems may, or may fail to, assure the (meaningful) participation in decision-making by, with and for individuals who are subject to mental capacity laws (P). Equally, the contributors have explained how laws bring individuals’ values into personal decision-making, or present barriers to this, and how values beyond the person’s may also feature in such decisions. We invited contributions based on a single template of contextual and law
Introduction Since the start of the 21st century, policy developments and legal practice have increasingly sought to express and implement changes that recognise the equality and rights of persons with mental impairments, including persons with learning disabilities and mental disorders. A great deal of academic scholarship, legal commentary and policy recommendations have focused attention on internal analyses of specific jurisdictions – for example, academic and practice-based discussions of mental capacity law in England and Wales have flourished in the
8 Applying the interface between the Mental Health Act and the Mental Capacity Act Chapter aim This chapter will enable you to meet the following AMHP key competence themes: • Knowledge of legislation and policy • Mental capacity legislation • Mental health legislation • Human rights Schedule 2 of the Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008 Key Competences 2(1)(a)(i) and (ii) Schedule 2 of the Mental Health (Approval of Persons to be Approved Mental Health Professionals) (Wales) Regulations 2008 Key
Introduction The focus of this chapter is on capacity law in Northern Ireland, specifically the Mental Capacity Act (Northern Ireland) 2016, and exploring how the rights of people with disabilities are being framed, promoted and protected in that context. The central role of participation and values will be examined, and the potentially highly important roles of context and timing will also be acknowledged. In comparison with other jurisdictions, perhaps the most significant aspect of capacity law in Northern Ireland is not the law itself, which is a
