Michael Gunn

Constructing and Reconstructing ‘Best Interests’: An Interpretative Examination of Substitute Decision‐making under the Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) authorises substitute decision‐making in England and Wales, in relation to ‘acts in connection with care or treatment’, for a person lacking the capacity to make an autonomous decision, if it is both necessary and in his or her ‘best interests’ to do so. The approach adopted by the MCA is consistent with the common law, but widens both the scope and procedures of a ‘best interests’ determination to allow for a general model of substitute decision‐making in everyday health and social care. However, by decontextualising substitute decision‐making, the MCAs procedures relating to ‘best interests’ may prove to be problematic in three ways: first, by failing to adequately resolve certain ethical dilemmas that pervade this area; second, by reducing applied substitute decision‐making to a series of compulsory generalised instructions; and, finally, by necessitating deliberation but offering little practical guidance to the process of determination. Whilst the codification of five statutory principles in the MCA is designed to foster the empowerment of vulnerable adults, the realisation of these procedural and conceptual problems may have a negative impact on the implementation of the Act.

Mental health act guardianship: Where now?

Abstract The Percy Commission reported on the Law Relating to Mental Illness and Mental Deficiency in 1957.1 A vital strand of the thinking in this Report was that the law should be such that suita...

Judicial review of hospital admissions and treatment in the community under the mental health act 1983

Abstract 1985 was an important year for people with an interest in mental health law. A number of significant questions were answered by the courts.1 This paper considers the issues arising out of two closely related sets of facts. The first, concerning Miss W, gave rise to two cases: R. v. Hallstrom and another, ex p. W (No. 1)2 and R. v. Hallstrom and another, exp. W (No. 2) The second, concerning Mr. L, gave rise to R. v. Gardner and another, ex p. L.4 In combination these cases, first, provide some indications as to the importance of judicial review to patients in mental institutions as a means of questioning action taken by doctors, social workers, nearest relatives and hospitals. Secondly, they highlight the inadequacies of Mental Health Review Tribunals in examining the original decision to admit a person to hospital. Finally, they consider the problems that doctors and social workers face when wanting to provide a person with treatment in the community. These problems are particularly pertinent si...

Locking the mentally ill out of the homelessness legislation

Abstract Homelessness - Housing Act 1985, s. 62 - eligibility to apply for local authority housing assistance - need for applicant to understand the nature and consequences of application Case: Garlick v Oldham Metropolitan Borough Council and related appeals Law report of case: [1993] 2 All England Law Reports 65

The common law and the informal' minor patient

Abstract Case: R. v Kirklees Metropolitan Borough Council, exparte C Law report of case: [1993] 2 Family Law Reports 187