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Chapter 5B - Mental Capacity Act Application: Social Care Settings

Published online by Cambridge University Press:  17 June 2019

By
Michael Dunn  and
Anthony Holland
Edited by
Rebecca Jacob ,
Michael Gunn  and
Anthony Holland
Rebecca Jacob
Affiliation:
University of Cambridge
Michael Gunn
Affiliation:
Staffordshire University
Anthony Holland
Affiliation:
University of Cambridge
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Summary

Following the Mental Capacity Act (MCA) becoming law in 2005, and prior to its coming into force in 2007, there was a sustained effort to train support staff in the many social care settings where this new law was applicable. This training drive was necessary because, prior to the MCA, mental capacity law had evolved in the courts through consideration of a small number of cases that concerned serious medical treatments. These included the withdrawal of artificial nutrition and hydration (Airedale NHS Trust v. Bland [1993]), blood transfusion (Re T [1993]), tissue donation (Re Y [1997]) and the provision of experimental medication for terminal illness (Simms v. Simms and another (2003)). In line with the Law Commission’s recommendations, the MCA extended the application of the law to ‘all acts in connection with care or treatment’ (MCA, Section 5), meaning that, overnight, social care settings and informal family care environments immediately fell within the scope of the legislation.

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Type
Chapter
Information
Mental Capacity Legislation
Principles and Practice
 , pp. 82 - 90
Publisher: Cambridge University Press
Print publication year: 2019

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References

References

Cantor, N. (2005) Making Medical Decisions for the Profoundly Mentally Disabled. MIT Press.Google Scholar
Department of Health and Social Care (2018) Final Government Response to the Law Commission’s Review of Deprivation of Liberty Safeguards and Mental Capacity: Written statement – HCWS542. www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2018-03-14/HCWS542/.Google Scholar
Dunn, M., Clare, I., Holland, A. & Gunn, M. (2007) Constructing and reconstructing ‘best interests’: An interpretative examination of substitute decision-making under the Mental Capacity Act 2005. Journal of Social Welfare and Family Law, 29, 117–133.Google Scholar
Dunn, M., Clare, I. & Holland, A. (2010) Living ‘a life like ours’: Support workers’ accounts of substitute decision-making in residential care homes for adults with intellectual disabilities. Journal of Intellectual Disability Research, 54, 144–160.Google Scholar
Health and Social Care Information Centre. (2015) Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England) Quarter 4 Return, 2014–15. https://digital.nhs.uk/data-and-information/publications/statistical/deprivation-of-liberty-safeguards-dols-monthly-summary-statistics/deprivation-of-liberty-safeguards-dols-monthly-summary-statistics-quarter-4–2014-15-january-to-march.Google Scholar
Hope, T., Slowther, A. & Eccles, J. (2009) Best interests, dementia, and the Mental Capacity Act (2005). Journal of Medical Ethics, 35, 733–738.Google Scholar
King’s Fund (2012) Demography: Future Trends. London: King’s Fund. www.kingsfund.org.uk/projects/time-think-differently/trends-demography.Google Scholar
Law Commission (2017) Mental Capacity and Deprivation of Liberty: Report No. 372. London: Law Commission.Google Scholar
Lim, C. M., Dunn, M. & Chin, J. (2016) Clarifying the best interests standard: The elaborative and enumerative strategies in public policy-making. Journal of Medical Ethics, 42, 542–549.CrossRefGoogle ScholarPubMed
Manthorpe, J. & Samsi, K. (2014) Care homes and the Mental Capacity Act 2005: Changes in understanding and practice over time. Dementia, 15, 858–871.Google Scholar

Case law

Airedale NHS Trust v. Bland [1993] AC 789.Google Scholar
IM v. LM & others [2014] EWCA Civ 37.Google Scholar
LBJ v. RYJ & VJ [2010] EWHC 2665.Google Scholar
P v. Cheshire West, Chester Council and another [2014] UKSC 19.Google Scholar
Re T (Adult: Refusal of Treatment) [1993] Fam 95.Google Scholar
Re Y (Mental Patient: Bone Marrow Donation) [1997] Fam 110.Google Scholar
Simms v. Simms and another [2003] 1 All ER 669.Google Scholar

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