Mary Donnelly

Best Interests, Patient Participation and the Mental Capacity Act 2005

This is a pre-copy-editing, author-produced PDF of an article accepted for publication in Medical Law Review following peer review. This article analyses the best interests standard as applied in the context of healthcare decisions in light of the participative elements introduced by the Mental Capacity Act (EW). It begins with a brief consideration of the best interests standard as it developed at common law. The article shows that, while the courts gradually developed a more systematic approach to best interests, judges remained largely resistant to facilitating participation by patients lacking capacity. The article examines the changes brought about by the MCA in this regard. It explores the policy basis for this aspect of the MCA and shows why the participative model represents the most appropriate response to decision-making for people lacking mental capacity. The article argues that notwithstanding the attractions of the MCA’s participative framework from a policy perspective, this approach to best interests gives rise to important practical and conceptual questions, which the article then explores. The article examines the difficulties in delivering genuine participation at a practical level and identifies the risk that patient participation will become a tokenistic endeavour.

CHILD-FRIENDLY HEALTHCARE: DELIVERING ON THE RIGHT TO BE HEARD

Under the United Nations Convention on the Rights of the Child (CRC), children capable of forming views have the right to express those views and have them taken into account in all decisions that affect them. Attention has only focused recently on the child’s right to be heard in the context of healthcare decision-making. This article addresses this issue from both a legal and a medical perspective. It begins by considering what participation means and by differentiating between autonomous decision-making by children and children’s participation in decision-making. It then evaluates the current state of participation in practice, drawing especially on a study conducted by the authors into the realities of children’s participation in healthcare decision-making in Ireland. This study helps identify a number of barriers to the delivery of participative practices. In particular, it identifies the potentially inhibiting role of parents, a finding which is replicated by studies in other jurisdictions. The article then investigates the legal status of parental objections to children’s participation and argues that both the CRC and the European Convention on Human Rights provide legal support for a requirement that the child’s right to participate in healthcare decision-making must be protected, even in the face of parental objections. The article also argues that focused legislation and codes of practice have a valuable contribution to make to the delivery of children’s participation rights in practice and that the introduction of such measures should be a priority.

Participation in Healthcare: the Views and Experiences of Children and Young People

Article 12 of the Convention on the Rights of the Child provides for the childs right to be heard and to be involved in decisions made about him/her. Effective implementation of the provision can have a lasting impact on childrens lives but it presents challenges, especially in areas like healthcare where the dynamics and pressures of the healthcare setting and the role of parents influence proceedings. Research involving children shows that their experience in this area is mixed, although they have a clear sense of the importance of being listened to about their healthcare and how their treatment can be improved. The similarities between childrens opinions on what they want from the healthcare experience and what Article 12 and the Convention generally set out to achieve is reassuring and presents a strong template as to how to strengthen the protection of childrens rights in the healthcare setting.

Determining Best Interests Under the Mental Capacity Act 2005

This paper concerns the application of the best interests standard introduced by section 4 of the Mental Capacity Act 2005 (MCA) in the context of an application to the Court of Protection for an order, from the funds of a woman lacking capacity, for maintenance payments in favour of her daughter. The paper identifies useful general insights into the operation of the MCA best interests standard from the discussion in this context.

Best interests in the Mental Capacity Act: time to say goodbye?

Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, as interpreted by the Committee on the Rights of Persons with Disabilities in General Comment No. 1, offers a vision for law’s response to capacity impairments which differs in crucial ways from that contained in the Mental Capacity Act 2005. The Committee rejects the functional test for capacity and requires that a ‘will and preferences’ paradigm must replace the ‘best interests’ paradigm and that all substitute decision-making regimes must be abolished. This article draws on the position adopted in General Comment No. 1 in evaluating the best interests standard in the Mental Capacity Act. It sets out the normative case for a stronger legislative endorsement of will and preferences and the inclusion of greater support mechanisms but rejects the contention that all substitute decision-making can, or should, be abolished. It also argues that the best interests standard in the Mental Capacity Act retains some revolutionary potential and that, pending legislative reform, this can be further developed through the courts.

Decisions at The end of Life: ‘The Inimitable Hallmark of the Lawyer’?

THIS case commentary analyses the application of the best interests standard in section 4 of the Mental Capacity Act 2005 by the Court in the decision in Abertawe Bro Morgannwg University Local Health Board v RY (by his litigation friend the official solicitor) and CP [2017] EWCOP 2. It evaluates the way in which the law impacted on how clinical decisions in respect of RY were made and identifies systemic concerns arising from the case.

Developing a Legal Framework for Advance Healthcare Planning: Comparing England & Wales and Ireland

This article examines the legislative frameworks for advance healthcare planning in England & Wales (the Mental Capacity Act 2005) and in Ireland (the Assisted Decision-Making (Capacity) Act 2015), undertaking a comparative analysis of each measure, with particular focus on the detail of the approaches taken. It is only through this kind of detailed focus that the normative choices made by legislation can fully be understood and evaluated. The article argues that, in several respects, possibly because the drafters were able to reflect lessons learned from other jurisdictions, the Assisted Decision-Making (Capacity) Act 2015 provides a more rounded and complete form of advance healthcare planning than that provided by the Mental Capacity Act. This is on the basis that it provides more protection for patient choice; better potential for delivery on the choices made; and a more appropriate balance between formalities and enforceability.

Victims of crime with disabilities: hidden casualites in the 'vision of victim as everyman'

In recent decades, criminal justice systems are, at least partially, being reconstructed as they demonstrate an increased sensitivity to the needs and concerns of victims of crime. As part of this, a new cultural theme of the victim as ‘Everyman’ is emerging. However, these generalizing tendencies conceal the multiplicity of experiences of victimhood and of interactions with the criminal justice system. As a result, certain categories of victim are rendered invisible and unable to share in the benefits of this more inclusive approach. One such category is victims with disabilities, and in particular those with intellectual or psychosocial disabilities. The purpose of this article is to write victims with disabilities in Ireland into the victim story more generally. Against a background of greater recognition of victims in Irish law and policy, it demonstrates the variety of ways in which victims with disabilities do not fit more orthodox, ‘everyman’, conceptions of victimization. It identifies the range of ways in which the outsider status of victims of crime with disabilities continues to be maintained in criminal justice policy, the adversarial process, the language employed by the criminal law, and service provision and identifies ways in which the failure to address the marginalization of victims with disabilities is a breach of international human rights obligations.

Victims of crime with disabilities in Ireland Hidden casualties in the ‘vision of victim as everyman’

In recent decades, criminal justice systems are, at least partially, being reconstructed as they demonstrate an increased sensitivity to the needs and concerns of victims of crime. As part of this, a new cultural theme of the victim as ‘Everyman’ is emerging. However, these generalizing tendencies conceal the multiplicity of experiences of victimhood and of interactions with the criminal justice system. As a result, certain categories of victim are rendered invisible and unable to share in the benefits of this more inclusive approach. One such category is victims with disabilities, and in particular those with intellectual or psychosocial disabilities. The purpose of this article is to write victims with disabilities in Ireland into the victim story more generally. Against a background of greater recognition of victims in Irish law and policy, it demonstrates the variety of ways in which victims with disabilities do not fit more orthodox, ‘everyman’, conceptions of victimization. It identifies the range of ways in which the outsider status of victims of crime with disabilities continues to be maintained in criminal justice policy, the adversarial process, the language employed by the criminal law, and service provision and identifies ways in which the failure to address the marginalization of victims with disabilities is a breach of international human rights obligations.

Victims of crime with disabilities in Ireland

In recent decades, criminal justice systems are, at least partially, being reconstructed as they demonstrate an increased sensitivity to the needs and concerns of victims of crime. As part of this, a new cultural theme of the victim as ‘Everyman’ is emerging. However, these generalizing tendencies conceal the multiplicity of experiences of victimhood and of interactions with the criminal justice system. As a result, certain categories of victim are rendered invisible and unable to share in the benefits of this more inclusive approach. One such category is victims with disabilities, and in particular those with intellectual or psychosocial disabilities. The purpose of this article is to write victims with disabilities in Ireland into the victim story more generally. Against a background of greater recognition of victims in Irish law and policy, it demonstrates the variety of ways in which victims with disabilities do not fit more orthodox, ‘everyman’, conceptions of victimization. It identifies the range of ways in which the outsider status of victims of crime with disabilities continues to be maintained in criminal justice policy, the adversarial process, the language employed by the criminal law, and service provision and identifies ways in which the failure to address the marginalization of victims with disabilities is a breach of international human rights obligations.