Book contents
- Frontmatter
- Contents
- Acknowledgements
- List of cases
- List of legislation
- Introduction
- 1 Autonomy: variations on a principle
- 2 Autonomy in the law
- 3 Capacity: the gatekeeper for autonomy
- 4 Capacity assessment in practice
- 5 Autonomy, rights and decision-making for patients lacking capacity
- 6 Treatment for a mental disorder: a case apart?
- Conclusion
- Bibliography
- Index
- References
4 - Capacity assessment in practice
Published online by Cambridge University Press: 04 February 2011
Book contents
- Frontmatter
- Contents
- Acknowledgements
- List of cases
- List of legislation
- Introduction
- 1 Autonomy: variations on a principle
- 2 Autonomy in the law
- 3 Capacity: the gatekeeper for autonomy
- 4 Capacity assessment in practice
- 5 Autonomy, rights and decision-making for patients lacking capacity
- 6 Treatment for a mental disorder: a case apart?
- Conclusion
- Bibliography
- Index
- References
Summary
In Re B (Adult: Refusal of Medical Treatment), Dame Butler-Sloss P described the test for capacity as ‘clear and easily to be understood by lawyers’. In fact, as this chapter shows, while the outline of the legal test may be stated with ease, what the test actually means is far from clear. Lord Phillips CJ was perhaps nearer the mark when he described capacity as ‘an important, but by no means straightforward concept under English law’. The lack of clarity increases the likelihood of assessors including their own views regarding the appropriateness of the patient's decision as part of the assessment of whether or not she has capacity. The legal test, however, represents just one part of the overall framework for capacity assessment in practice. The kind of process employed in testing for capacity is crucial both in ensuring accurate assessments and in developing the capacity of the person assessed, as is required under the Mental Capacity Act 2005 (MCA). In this respect, formal judicial determinations of capacity comprise a very small proportion of such determinations. For the most part, the law has delegated the function of assessing capacity to non-judicial assessors. These are primarily healthcare professionals, and in most serious cases involving healthcare decisions, they are likely to be medical professionals. Furthermore, even when capacity is judicially determined, judicial conclusions are heavily reliant on expert evidence from professionals.
- Type
- Chapter
- Information
- Healthcare Decision-Making and the LawAutonomy, Capacity and the Limits of Liberalism, pp. 131 - 175Publisher: Cambridge University PressPrint publication year: 2010
References
, ‘Assessing Capacity under the Mental Capacity Act 2005: Delivering on the Functional Approach?’ (2009) 29 Legal Studies 464CrossRefGoogle Scholar
, ‘Informal Compulsion: The Psychiatric Treatment of Juveniles under Common Law’ (1992) 4 Journal of Social Welfare and Family Law 311, 324Google Scholar
and , Deciding for Others: The Ethics of Surrogate Decision-Making (New York: Cambridge University Press, 1989), p. 24Google Scholar
, ‘Compassion, Control and Decisions About Competency’ (1984) 141 American Journal of Psychiatry 53, 57Google ScholarPubMed
et al., ‘Tests of Competency to Consent to Treatment’ (1977) 134 American Journal of Psychiatry 279, 281–2Google ScholarPubMed
et al., ‘Mini Mental State – A Practical Method for Grading the Cognitive State of Patients for the Clinician’ (1975) 12 Journal of Psychiatric Research 189Google Scholar
, Evaluating Competencies: Forensic Assessments and Instruments (2nd edn) (Dordrecht: Kluwer Academic, 2002)Google Scholar
et al., ‘Assessing Decisional Capacity for Clinical Research or Treatment: A Review of Instruments’ (2006) 163 American Journal of Psychiatry 1323CrossRefGoogle ScholarPubMed
and , Mental Health Law: Policy and Practice (3rd edn) (Oxford University Press, 2007), p. 514Google Scholar
and , ‘The MacArthur Treatment Competence Study I: Mental Illness and Competence to Consent to Treatment’ (1995) 19 Law and Human Behaviour 105, 109CrossRefGoogle ScholarPubMed
and , Assessing Competence to Consent: A Guide for Physicians and Other Health Professionals (Oxford University Press, 1998)Google Scholar
, ‘Informed Consent and Other Fairy Stories’ (1999) 7 Medical Law Review 103, 125–7CrossRefGoogle Scholar
and , ‘The MacArthur Treatment Competence Study III: Abilities of Patients to Consent to Psychiatric and Medical Treatments’ (1995) 19 Law and Human Behaviour 149Google ScholarPubMed
et al., ‘Competence to Make Treatment Decisions in Anorexia Nervosa: Thinking Processes and Values’ (2006) 13 Philosophy, Psychology and Psychiatry 267, 271–72Google ScholarPubMed
and (eds.) Coercion and Aggressive Community Treatment: A New Frontier in Mental Health Law (New York: Plenum Press, 1996), p. 24CrossRefGoogle Scholar
, ‘Mental Health Review Tribunal Decision-Making: A Therapeutic Jurisprudence Lens’ (2003) 10 Psychiatry, Psychology and Law 44CrossRefGoogle Scholar
, ‘The Right to Refuse Mental Health Treatment: A Therapeutic Jurisprudence Analysis’ (1994) 17 International Journal of Law and Psychiatry 99, 100CrossRefGoogle ScholarPubMed
and (eds.) Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (Aldershot: Ashgate, 2003), p. 337Google Scholar
, ‘Fatal Assumption: A Critical Evaluation of the Role of Counsel in Mental Disability Cases’ (1992) 16 Law and Human Behaviour 39CrossRefGoogle Scholar
, ‘Is it More Than “Dodging Lions and Wastin’ Time”? Adequacy of Counsel, Questions of Competence, and the Judicial Process in Individual Right to Refuse Treatment Cases” (1996) 2 Psychology, Public Policy and Law 114, 120CrossRefGoogle Scholar
, et al., ‘Advocacy and Participation in Mental Health Cases: Realisable Rights or Pipe-dreams?’ (2008) 26 Law in Context 125Google Scholar
, ‘A Matter of Necessity: Enforced Treatment under the Mental Health Act’ (2007) 15 Medical Law Review 86, 91CrossRefGoogle ScholarPubMed
, ‘Assessing Legal Capacity: Process and the Operation of the Functional Test’ [2007] 2 Judicial Studies Institute Journal 141, 161–8Google Scholar
, ‘Treatment Reviews: Legalism, Process and Rights Protection’ in B. McSherry and P. Weller (eds.) Rethinking Rights-Based Mental Health Law (Oxford: Hart Publishing, 2010) pp. 282–3Google Scholar
, ‘The Elderly Guardianship Tribunal Hearing: A Socio-Legal Encounter’ (1992) 6 Journal of Aging Studies 165CrossRefGoogle Scholar
et al., ‘Communicating With People With an Intellectual Disability in Guardianship Board Hearings: An Exploratory Study’ (1999) 24 Journal of Intellectual and Developmental Disability 279Google Scholar
, Practical Treatise on the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind (Philadelphia: J. S. Littell, 1833), p. 40Google Scholar
, ‘The Lights of Science and Experience: Historical Perspective on Legal Attitudes Toward the Role of Medical Expertise in Guardianship of the Elderly’ (1989) 33 American Journal of Legal History 201CrossRefGoogle Scholar
, ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) 9 Medical Law Review 1, 1Google ScholarPubMed
and , ‘Clinicians’ Guidelines for Assessing and Presenting Subtle Forms of Patient Incompetence in Legal Settings' (1986) 143 American Journal of Psychiatry 1020, 1020Google ScholarPubMed
, ‘Leaving Civil Rights to the “Experts”: From Deference to Abdication Under the Professional Judgment Standard’ (1992) 102 Yale Law Journal 639CrossRefGoogle Scholar
, ‘Judicial Deference to Nonlegal Decisionmakers: Imposing Simplistic Solutions on Problems of Cognitive Complexity in Mental Disability Law’ (1992) 46 Southern Methodist University Law Review 329Google Scholar
, ‘Pretexts and Mental Disability Law: The Case of Competency’ (1993) 47 University of Miami Law Review 625Google Scholar
, ‘Judging Judgment: Assessing the Competence of Mental Patients to Refuse Treatment’ (1995) 32 San Diego Law Review 343Google Scholar
and , ‘Weaving a Tangled Web: The Deceptions of Psychiatrists’ (1999) 10 Journal of Contemporary Legal Issues 227Google Scholar
et al., ‘Consistency of Physicians’ Judgments of Capacity to Consent in Mild Alzheimer's Disease' (1997) 45 Journal of the American Geriatrics Society 132Google Scholar
and , ‘How Much do Doctors Know About Consent and Capacity?’ (2002) 95 Journal of the Royal Society of Medicine 601CrossRefGoogle ScholarPubMed
et al., ‘Substitute Financial Decision-making in England and Wales: A Study of the Court of Protection’ (2002) 24 Journal of Social Welfare and Family Law 37CrossRefGoogle Scholar
et al., ‘Pitfalls in Assessment of Decision-Making Capacity’ (2003) 44 Psychosomatics 237CrossRefGoogle ScholarPubMed
and , ‘Ascertaining Capacity to Consent: A Survey of Approaches Used by Psychiatrists’ (2003) 43 Medicine, Science and the Law 231CrossRefGoogle ScholarPubMed
et al., ‘Prevalence of Mental Incapacity in Medical Inpatients and Associated Risk Factors: Cross-Sectional Study’ (2004) 364 Lancet 1421CrossRefGoogle ScholarPubMed
, ‘The Adults With Incapacity (Scotland) Act – Who Knows? Who Cares?’ (2005) 45 Scottish Medical Journal 20Google Scholar
et al., ‘Reliability of Mental Capacity Assessments in Psychiatric In-Patients’ (2005) 187 British Journal of Psychiatry 372CrossRefGoogle ScholarPubMed
et al., ‘How Much Do Emergency Healthcare Workers Know About Capacity and Consent?’ (2007) 24 Emergency Medicine Journal 291CrossRefGoogle ScholarPubMed
, ‘A Clinician's Perspective: Issues of Capacity in Care’ (2008) 14 Medico-Legal Journal of Ireland 41, 44Google Scholar
, Law as an Autopoietic System (Florence: The European University Institute Press Series, 1993)Google Scholar
and , ‘Law Without Enforcement: Theory and Practice’ in N. Eastman and J. Peay (eds.) Law Without Enforcement: Integrating Mental Health and Justice (Oxford: Hart Publications, 1999), pp. 21–4Google Scholar
et al., ‘Functional Mental Capacity is not Independent of the Severity of Psychosis’ (2008) 31 International Journal of Law and Psychiatry 9CrossRefGoogle ScholarPubMed
and , ‘How Many Procedural Safeguards Does it Take to Get a Psychiatrist to Leave the Lightbulb Unchanged? A Due Process Analysis of the MacArthur Treatment Competence Study’ (1996) 2 Psychology, Public Policy and Law 45, 67CrossRefGoogle Scholar
, ‘Judgments About Patient Competence: Cultural and Economic Antecedents’ in M. Cutter and E. Shelp (eds.) Competency: A Study of Informal Competency Determinations in Primary Care (Dordrecht: Kluwer Academic Publishers, 1991), p. 218Google Scholar
and , Rethinking Informed Consent in Bioethics (Cambridge University Press, 2007), p. 56CrossRefGoogle Scholar
et al., ‘Sex Role Stereotypes and Clinical Judgements of Mental Health’ (1970) 34 Journal of Consulting and Clinical Psychology 1CrossRefGoogle Scholar
, The Female Malady: Women, Madness and English Culture: 1830–1985 (New York: Pantheon, 1985)Google Scholar
, ‘Silencing the Different Voice: Competence, Feminist Theory and Law’ (1993) 47 University of Miami Law Review 763, 772Google Scholar
, No Longer Patient: Feminist Ethics and Health Care (Philadelphia: Temple University Press, 1992), pp. 93–4Google Scholar
‘Labelling Patient (In)Competence: A Feminist Analysis of Medico-Legal Discourse’ (1999) 30 Journal of Social Philosophy 295, 302CrossRefGoogle Scholar
and , ‘Feminist Perspectives on Mental Health Law’ in S. Sheldon and M. Thompson eds. Feminist Perspectives on Healthcare Law (London: Cavendish Publishing, 1998), p. 89Google Scholar
and , ‘The Mental Capacity Act 2005’ (2007) 335 British Medical Journal 898CrossRefGoogle ScholarPubMed
et al., ‘Assessing Mental Capacity: The Mental Capacity Act’ (2008) 336 British Medical Journal 322CrossRefGoogle ScholarPubMed