Capacity to Make Decisions about Care and Treatment Flashcards
Do the wishes of capacitous patients to not go into hospital play a role in criteria for admission, renewal of detention or discharge?
No but the Code of Practice indicates that it is a factor to be taken into account.
What case acknowledged the central importance of P’s wishes to determining the legality of medical care?
Airedale NHS Trust v Bland - “The principle of the sanctity of human life must yield to the principle of self-determination and, the doctor’s duty to act in the best interests of his patient must likewise be qualified”.
Re C?
He had an absolute right to refuse treatment.
What did Re KB; A NHS Trust v Dr A; R v Collins and Ashworth Hospital Authority, ex parte Brady show?
That some mental disorder may according to the court, prevent patients from making autonomous decisions like eating disorder, compulsive disorder and personality disorders.
What did the Richardson Committee highlight regarding the apparent discrimination between the law’s management of mentally disordered and those without mental illness?
“Mental disorder, unlike physical disorder, may have a wider consequences for the individuals family and carer, and others affected by the individuals behaviour, acts and omissions”.
What did Richardson and Eastman & Dhar acknowledge?
That a person with capacity, their wishes were relevant to determined when compulsion should be used (only in cases of substantial risk of harm).
“An alternative approach might be to balance ethical considerations of autonomy/capacity and consequences such that the capacitous refusal would be respected where the consequences of doing so were not be adversely grave”.
Eastman and Dhar: what would the implication be if we accepted that capacity is not inherently binary?
It could result in differing degrees of respect for autonomy, depending upon how much capacity the person had.
What did the Government decline to introduce?
It declined to introduce a capacity threshold for compulsory admission in its draft Bills of 2002, 2004 and the 2006 Bill. This was subject to considerable criticism by commentators to the draft legislation and by the Joint Committee on Human Rights.
What does the ‘The Mental Health (Care and Treatment) (Scotland) Act 2003 state?
It states that a patient cannot be brought under the Act unless his ability to make decisions about his treatment is deemed so significantly impaired as a result of mental disorder.
What did the Joint Committee in 2004 recommend?
That English Law should adopt the Scottish approach to introduce a capacity threshold, but this was rejected.
What was a consequence of England rejecting a Scot like law?
Consequence was that there is no capacity threshold in the MHA 1987 relating to compulsory admission.
What could a fused system of mental health and incapacity system perhaps do?
Ensure that everyone is treated the same, decisions made with capacity would be respected and those without capacity would be treated in their best interests.
What do Dawson and Szmukler argue?
They are keen advocates of fusion. They argue that legislation governing both based on incapacity, would reduce discrimination.
What is wrong with continued separate legislation?
It is unacceptable and inconsistent with general principles of medical ethics and human rights.
What is the first legal system to adopt a fused system?
Northern Ireland Mental Capacity Act 2016
