This chapter reviews the Mental Capacity Act (2005), and Deprivation of Liberty Safeguards (Liberty Protection Safeguards). It reviews how to assess capacity, using the two-stage test, followed by when it is appropriate to undertake best interests meetings. Some of the main decisions are reviewed which are likely to be relevant to people with dementia, such as care and residence, managing finances, and deciding on medical treatment.

This chapter will explore how the provisions governing best interests assessments ought to be reformed so as to better ensure that an agent’s authentic desires are being prioritised in decisions being taken about them. The starting point should be that the assessor ascertains ‘so far is reasonably practicable’ the individual’s wishes, feelings, beliefs, and values. This should then be supplemented by a presumption that the agent’s wishes and feelings will be determinative of what is in their best interests, except when giving effect to them will expose the person to a risk of significant harm. Even where the harms are significant, however, there will still be occasions where the agent’s wishes and feelings should nonetheless take precedence; where to do otherwise would involve frustrating their deeply and authentically held beliefs, values, or commitments. This chapter will highlight some of the potential considerations which ought to guide assessors in these circumstances. It will propose that assessors be provided with a list of factors that they must take into account when determining the degree of weight to be ascribed to the agent’s wishes, which reflect these considerations.

The Introduction summarises the core themes of the book and outlines how the argument will proceed over the course of its chapters. It explains why the issue it centres around – namely, how the law grapples with the impact of mental disorder on decision-making – is so important, and why successfully navigating the tension between respect for (and deference to) idiosyncratic values, and protection from disorder or impairment, must be a precondition of England and Wales adopting ‘fused’ mental capacity and health legislation, or a more CRPD-compliant statutory framework. It also explains how the book relates to the existing literature in this area, which has focused in recent years on concerns about the binary nature of the capacity framework, and on the individualistic and rational ‘liberal subject’ on which this framework rests. Finally, it elaborates briefly on some of the concepts which the book will draw upon, in particular what is meant by ‘values’ and ‘beliefs’.

The foregoing discussion has highlighted the fundamental fragility of assessments of capacity, which hinge on a series of complex yet unavoidable clinical judgements about the person’s cognitive capacities and the origins of the beliefs or values that motivate their decision. This chapter will explore the implications of this for best interests assessments and, in particular, the extent to which due weight is currently being given to the person’s authentically held values and beliefs in the assessment of their best interests. Drawing on case law, interviews, and post-legislative scrutiny of the Mental Capacity Act, it will conclude that despite a number of empowering court decisions, the lack of direction contained in the Act on how to apply the MCA has still resulted in different weight being attributed to the agent’s wishes. Moreover, the trend towards greater empowerment has not yet trickled down to decisions being taken on the ground by doctors and care workers, which still remain characterised largely by paternalism and risk aversion. Those undertaking best interests assessments could therefore benefit from a more unified starting point and greater clarity on the factors which ought to influence the degree of weight accorded to the individual’s wishes.

Chapter 2 explains the historical and contemporary policy, legal and human rights contexts for decision-making by, with and for adults with cognitive disability. It describes the dominant narrative in the literature as depicting a journey from paternalism to autonomy, from exclusion to inclusion, and from discrimination to equality, aligned with three widely recognised models of disability – the charity, medical and social models. It explains that the book’s interpretation of Article 12 is founded on the acceptance of a social model of disability that acknowledges the residual impacts of impairment. The chapter explains the limitations of arguments favouring an interpretation of Article 12 as requiring that decision-making by substitutes be abolished. Such arguments privilege autonomy at the expense of other important human rights values and privilege the civil and political right to legal capacity over other civil, economic, political, social and cultural human rights.

The Mental Capacity Act (MCA) 2005 came into force in 2007 and covers England and Wales. It provides a statutory framework for anyone over the age of 16 who lacks capacity to make decisions for themselves, for whatever reason. The MCA was drafted by the Law Commission partly in response to the increased prevalence of dementia and the lack of legislation to deal with the challenges of so many people living longer and losing their ability to make decisions. It is the loss of ability to make decisions, because of the disease, which makes the key link between providing care and treatment with the application of the law. This is why the MCA is perhaps the most important of all the pieces of legislation we consider. The practical applications of the Act will be dealt with in more detail in the chapters to follow. More detailed guidance can be found in the Mental Capacity Act 2005: Code of Practice (for England and Wales), revised in 2022. We include some of the main amendments to the Code at the end of this chapter and these are also covered in the relevant sections of the book.

When undertaking any intervention for an individual, you must be mindful of the legal authority or justification for the act. By intervention, we mean the full gamut of medical treatments or any act that relates to the care or welfare of that person. In this chapter, we will first consider the general legal principles that apply in almost any setting, but we have then divided the subsequent sections based on the location where care is predominantly provided (i.e. a domestic/home situation, care home or hospital). Although this is somewhat arbitrary, it broadly correlates with the progressive deterioration of the clinical state and in the transitions from living at home, to hospital or care home and through to the end of life. It therefore allows us to consider some situation-specific questions and how the law applies in negotiating the moves between locations or care settings.

Key Learning Points

1. 1. The capacity to make an autonomous decision is central to all of modern medicine.

2. 2. Valid consent requires the voluntary decision of an individual with capacity who has been given adequate information.

3. 3. When a patient lacks the capacity to consent, then the justification for treating them is best interests.

4. 4. Mediation is a process where the two (or more) sides of a dispute have a structured conversation to try and find a mutually acceptable resolution.

5. 5. The results of mediation showed that between 60 and 90 per cent of disputes settled without the need to go to court.

Key Learning Points

1. 1. The four components of capacity concern a patient’s ability to understand, retain, weigh and communicate a decision.

2. 2. It is the responsibility of the lead clinician to ensure that capacity has been assessed and to make the final decision regarding capacity, even where a professional opinion has been sought.

3. 3. The Mental Capacity Act (MCA) 2005 allows treatment of patients for MEDICAL conditions only, under the ‘best interests’ principle.

4. 4. All patients admitted to the intensive care unit should be considered at risk of deprivation of liberty, and a Deprivation of Liberty Safeguards (DoLS) assessment should be considered.

5. 5. The Mental Health Act (MHA; 1983) allows treatment of patients for PSYCHIATRIC conditions only.

This chapter considers rules applicable in the UK to shareholders exercising power in their own interests, rather than the interests of the company, and asks whether these create any problems for private equity investors, in theory and in practice.It also looks at other ways in which shareholders and directors can be held liable for the actions of their companies, including Bribery Act rules, health and safety laws, competition law rules and tortious liability.

This chapter examines how the duty of directors to act in good faith in the best interests of the company could be used to promote sustainability in the four Asian jurisdictions. Forceful critiques have been put forward that shareholder primacy – often defined as the maximisation of share price – is a considerable impediment to promoting sustainability.

Chapter 2 analyses sociological and psychological research pertaining to same-sex parenting. This chapter builds onas it uses the relevant research to guide the application of the best interests principle. This research is used to inform the demands of the principle and to reduce the indeterminacy and subjectivity of decision-making as it relates to the children of gay and lesbian families. Existing sociological and psychological studies are assessed to determine whether children’s best interests can be served by same-sex parents and, consequently, whether legal recognition of these family relationships is desirable. This approach is also used to assess the application of specific laws in terms of their impact on the best interests of the child.

This chapter sets out the importance of a children’s rights focused inquiry into the human rights obligation of business enterprises by drawing insights from various disciplines, including philosophy, psychology, sociology and medical sciences. It sets out childhood as a stage of rapid development, the disproportionate and different effects of harms during childhood and children’s rights as a remedy to children’s invisibility, lack of public voice and consultation. The characteristics of a children’s rights focus for businesses as human rights duty-bearers are sketched out and linked to the so-called general principles of children’s rights.