Changes as Seen by the Mental Capacity Act 2005 - Essay Example

Mental Capa Act 2005 This essay discusses the proposition whether the Mental Capa Act 2005 which came into force in 2007 has dispensed with the need of any further reforms.The new MCA is based upon a few ground rules.It it lays the presumption of capacity for every adult to have the right to make his or her own (unless proven otherwise),and before a person is declared as not being capable as such they should be given all the practicable help to do so. Unwise decisions will not be held as persons incapacity to make decisions and any acts done or decisions made under the Act for or on behalf of a person who lacks capacity must be done in their best interests and finally anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms. (MCA 2005).The Act affects individuals over the age of 16 and provides for these individuals to be able to make some decisions for themselves. This should include people with learning disabilities or mental impairments and it also provides for people anticipating problems in future decision making to nominate decision makers for themselves.These decisions can under the Mental Health Act 2005 pertain to their property and affairs, healthcare treatment and where the person lives, as well as lifestyle decisions and it is stated that this end has put an end to the long and winding Governments efforts to reform Mental Health Law in England.Problems faced by the elderly suffering from undue influence and unfair extortion can be well remembered from cases like Commission for Racial Equality v Imperial Society of Teachers of Dancing [1983] I.C.R. 473; Liberian Shipping Corp v A King & Sons Ltd (The Pegasus) [1967] 1 All E.R. 934: and in particular Royal Bank of Scotland Plc v Etridge (No.2) (2001) 3 W.L.R. 1021 and Humphreys v Humphreys [2004] EWHC 2201 (Ch) which showed such problems of consent arising later in the bullying of weak minded old people and women in commercial transactions. A perusal of the Act reveals that it enshrines the a hybrid approach through combining in legislation the current best practice and common law principles for people who lack mental capacity and those who take decisions on their behalf. The law as it stood before this Act consisted of hotch potch pieces of legislation which current statutory schemes for Enduring Powers of Attorney and Court of Protection receivership. Under the Act the lack of capacity of a person can be assessed and through the “decision-specific” and time specific test which would entail that no one can be labelled ‘incapable’ simply as a result of a particular medical condition or diagnosis. Under Section 2 of the Act mere age or appearance are not the basis of assuming incapacity.Under Section 5 the Act also offers criminal and civil immunity to carers subject to Section 6 of the Act where it defines restraint as the use or threat of force where a person who lacks capacity resists, and any restriction of liberty or movement whether or not the person resists. . This section does not extend to deprivation of liberty within the meaning of Article 5(1) of the European Convention on Human Rights. However the Government has proposed to amend the Mental Capacity Act by introducing additional safeguards for people who lack capacity and are deprived of their liberty to protect them from harm, who are in hospitals and care homes, but who do not receive mental health legislation safeguards. The European Court of Human Rights (‘ECHR’) recently gave a judgment in HL v United Kingdom 1– the “Bournewood” case which concerned a 49- year-old man with autism, who agreeably lacked capacity and was made a an in-patient at Bournewood Hospital. This detention was not under the Mental Health Act 1983 (‘MHA 1983’) but justified by the hospital on his own ‘best interests’ under the common law doctrine of ‘necessity’. Mr L brought legal proceedings against the managers of the hospital, claiming that he had been unlawfully detained. The Court of Court of Appeal took the view that Mr L had been detained, and that such detention would only have been lawful under MHA 1983. A similar view was taken by the ECHR where it was found that Mr L was detained, so that the ‘right to liberty’ in Article 5 of the ECHR was infringed. The MCA 2005 should have taken this decision into account because it often happens that many patients are forced to be admitted into hospitals in their “best interests”.The MCA 2005 thus lacks the consideration for the ‘Bournewood patients’ and it seems that in the long run this will have to change. The Act has promoted criminal proceedings against those who ill treat a person who lacks capacity. The Act also impose the moral and ethical boundaries which must be followed in order to include truth telling, promise keeping, and respect for autonomy of the incapacitate person. The Act thus focuses on a right of a person to elect medical treatment whether they temporarily or permanently lack mental capacity and therefore are unable to act autonomously. Although the act has aimed to clarify a number of legal uncertainties and to govern decision-making on behalf of adults. There is an over all feeling however that the “best interests” issue should still be dealt with as it may be too arbitrary to say the least and that new Act will allow the sterilisation of those with learning disability.(Re F (Mental Patient: Sterilisation) [1990] 2 A.C. ) The Act is silent on the prospects of Mercy killing and Euthanasia and it is believed that there should have been a greater effort to integrate the provisions of the Mental Capacity Act 2005 with those of the Mental Health Act 1983 instead of putting it in for a separate review and this was the view of the expert committee working on the Mental Health Act back in 1983 but the idea was dropped after the Government considered other outlets. The Act is important as it finally addresses the problem of the legalities and ethical considerations involved in research on people lacking mental capacity. This is an important subject. The section below will explore some gaps which still remain in this reform however. The missing link The Act indeed goes far in addressing the problems of people with incapacity. However it is suggested that better inroads could have been achieved into the problem of Mental Health and Capacity if more attention had been paid to the social problems of Ethnic minorities in England as well as the education of children with special learning needs.Indeed the Act should have addressed the choice of selecting the medium of education for Mentally challenged children.Britain being a culturally diverse society some attention must have been paid to the abuse of the elderly and women in closed ethnic minorities like the South Asian people. It can be seen from studies that marriage wise the South Asian Culture relies heavily on formal marriage and people tend to live with their children, which means that there are significantly more two-generation households among South Asians than among other ethnic group. Many researchers and academics have described what they call the hidden hell of being born and raised in Britain for young south Asian men who are forced into arranged marriages with their native cousins .Often the fact that these men are mentally slow or so mentally suppressed is ignored. Mental Capacity has to take into account cultural duress as it has led to much emotionally charged crime like suicides and murders, often called "honor killings," of South Asians Men and Women .Infact the Britains Forced Marriage Unit(est. 2005) deals with about 300 cases each year and has revealed that 65 percent of known cases involve Pakistan, 25 percent Bangladesh, a small percentage of native Indians.Contrary to the popular misconception of the “Strong South Asian Male” the males comprise 15 percent of these cases.Despite clear rules on the capacity of adults to make their life choices the South Asian code of “honour” ensures that anyone who flouts the honour of the elders is shamed properly and decisions are often imposed upon mentally weak teenagers. Today many men forced into such marriages escape and will resort to a criminal way of life. There is also evidence to show rampant g violence or abuse and pressure around marriage and relationships. Things are further complicated by the attitude of the community towards unemployed Asian men who are given small status in their culture. The other problem as it relates is the decision and capacity for intellectually challenged individuals to decide their schooling in their best interests.The current failure of the SEN (special educational needs) initiative is obvious from the current unrest in parents and the SEN students alike due to the legal compulsion to send such children to normal schools. This is particularly obvious from the funding problems and the difficulties faced by the teachers in dealing with learning disabilities.The Act could have done better by offering the option which actually favours that when segregated these children might be treated by specialist teachers.Admittedly it is unfair to separate SEN pupils from the mainstream curriculum experience and deal with skill deficits in isolation but it has to be seen that the slow disadvantaged learner might feel more disadvantaged when surrounded by normal learners.The argument thus is that even at the early stages such people who are disabled by birth should have a choice to choose or have choices made for them not based on the legal rules but upon their best interests.And the law should provide for the finding of these best interests and these should not be based upon arbitrary decisions of the individuals around them. The Mental Capacity Act 2005 has not done the needful it seems for the issue of the capacity to consent to sexual relations and to consider the impact such developments might have upon the criminal law relating to capacity and consent in the context of sexual offences against the mentally disordered. The issue is controversial as on the one hand there is a need to protect the mentally disordered against exploitation and abuse, and on the other is the respect for their private life , including a private sexual life.Thus this becomes a question of Paternalism v basic human rights of privacy. In the nineteenth century it was recognised that a mentally disordered person could provide a legal consent to sexual activity if their “animal instincts” took over: R. v Richard Fletcher (1859) Bell 63; R. v Fletcher (1865-72) L.R. 1 C.C.R. 39; R. v Barratt (1872-75) L.R. 2 C.C.R. 81. Palles C.B. in R. v Dee (1884) 15 Cox CC 579 however regarded this as “discreditable to any jurisprudence in which it may succeed in obtaining a place” (p.594), the problem resurfaced in the Jenkins (2000)2 where it was stated that a mentally disordered complainant had consented to sex through her “animal instincts”. Although this view was reversed by the Sexual Offences Act 2003 which created a new statutory definition of consent in s.74: “…a person consents if he agrees by choice and has the freedom and capacity to make that choice”. This could have been better address in the Mental Capacity Act 2003 while endorsing a rather utonomy-based approach towards consent and actually clarifying what is sexual consent for mentally challenged people.The problem as it is has been stated by Smith & Hogan( 2005:601): as “For example, must B understand the risks of disease and pregnancy from unprotected intercourse in case of penile penetration?…What, for example, of B who has a sound anatomical knowledge but lacks any ability to comprehend the broader consequences of the activity - for example to understand the risks of disease and pregnancy from unprotected intercourse and the social consequences of having sexual intercourse?” It can be seen that guidance for Capacity was formerly contained in cases like Re T (Adult Refusal of Treatment) [1992] 2 F.L.R. 4585 ; Re C (Refusal of Medical Treatment) [1994] 1 F.L.R. 31 and Re MB (Medical Treatment) [1997] 2 F.L.R. 426, where the civil courts considered the test for capacity in relation to incapacitated adults. The concept of “inability to refuse” under the Sexual offences Act 2003 should have been clarified further in the context of sexual consent for the Mentally Challenged.In the recent case of Hulme v DPP [2006] EWHC 1347 an old man had touched a mentally weak woman’s s vagina over her clothing and made her touch his private parts.Her confusion and mental weakness was held to be an ability to refuse. The Mental Capacity Act 2005 would shed some light over this “inability to refuse” and to make a genuine choice. It can be said that this Act although not specifically applied to the Sexual Offences Act 2003, may assist in the interpretation of the concept of “inability to decide” for deciding capacity. Section 2(1) of the MCA 2005 states that: For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of or disturbance in the functioning of, the mind or brain. For the purposes of section 2, a person is unable to make a decision for himself if he is unable-- (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). The problem is that under the e Mental Capacity Act 2005 Code of Practice the MCA 2005 applies in relation to financial, healthcare or welfare decisions, and does not replace pre-existing common law tests relating to matters such as marriage and principles of contract.Recent case law has reflected this gap.For example in the case of X City Council v MB, NB and MAB [2006] EWHC 168 (Fam) involved MAB, a 25 year old man with marked autistic spectrum disorder and was South Asian.The Local Authority was concerned that his marriage was unable to stop his marriage as the courts after much thought decided that since the level of knowledge and understanding in relation to the sexual act need not be “complete or sophisticated he should be allowed to get married.A similar decision was taken in the cases of MM (an adult) [2007] EWHC 2003 (Fam). but the court did not allow her spouse to move her away as it was held that she lacked capacity to decide where she should live and with whom; with whom she should have contact; to litigate; to marry or to manage her own finances. Similar cases have included MB [2006] EWHC 168 (Fam) which concerned the same cultural issues and matters of consent showing the gap of the MCA 2005. On a concluding note although my essay has reviewed the deficiencies which still remain in the arena of Mental Capacity and health legislation, the efforts of the Act are laudable in the sense that it has codified and brought together most of the hotch potch law.But the main criticism is that it is not extensive enough to cover sensitive areas of cultural problems and sexual offences. References BMA (1995), Advance Statements about Medical Treatment: Code of Practice, British Medical Association, London, Department of Constitutional Affairs (2006), “Mental Capacity Act Code of Practice: Response to Consultation, CP(R) 05/06”, 29 September, available at: www.DCA.gov.uk/consult/codepractise/responses.pdf, . The United Kingdom Parliament. www.publications.parliament.uk Shickle, D. 2005 The Mental Capacity Act 2005. Clin Med 2006;6:169-73. Christian Medical Fellowship. www.cmf.org.uk/index/mental_capacity_ act.htm Zigmond, AS. 1983 Mental Health Act 1983: the Green Paper. Psychiatr Bull R Coll Psychiatr 2001;25:126-8. Department of Health. 1999 :Report of the expert committee: review of the Mental Health Act 1983. London: DH, 1999. Department of Health (2006), Appendix B: Summary of the Mental Capacity Act 2005, Department of Health, London, Gateway Reference 6703, . Department of Health (2006), Appendix A: Best Practice Tool, Department of Health, London, Gateway Reference 6703, . Mental Capacity Act (2005), The Stationery Office, London, . Royal College of Psychiatrists (2006), Response to the Draft Code of Practice of the Mental Capacity Act, 2005, Royal College of Psychiatrists, London, G. Williams, 1983 Criminal Law, 2nd edn (1983), para.25.12; Smith & Hogan, (2005)Criminal Law, 11th edn (2005), p.601. Rook and Ward, 2004 Sexual Offences 3rd edn (2004) 1.93-1.96. Godfrey M., Surr C., Boyle G., Townsend J. & Brooker D. (2005) Prevention and Service Provision: Mental Health Problems in Later Life. [WWW document]. URL http://www.mhilli.org/index.aspx?page=stage2services.htm. Hindess B. (1993) Citizenship in the Modern West. In: B. Turner (Ed.) Citizenship and Social Theory, pp. 19–35. Sage, London. Hofland B.F. (1995) Resident autonomy in long-term care: paradoxes and challenges. In: L.M. Gamroth, J. Semradek & E.M. Tornquist (Eds) Enhancing Autonomy in Long-Term Care. Concepts and Strategies, pp. 15–33. Springer, New York, NY. Jones R. (2005) Review of the Mental Capacity Act 2005. Psychiatric Bulletin 29, 423–427. Knapp M., Prince M., Albanese E., et al. (2007) Dementia UK: A Report into the Prevalence and Cost of Dementia. [WWW document]. URL http://www.alzheimers.org.uk/News_and_Campaigns/Campaigning/PDF/Dementia_UK_Full_Report.pdf. Ware, J. (1999) ‘Children with severe and profound learning difficulties.’ Presentation to ‘Mapping a SEN pedagogy.’ Invited seminar, British Educational Research Association (BERA) National Events Programme, University of London, Institute of Education, April. Wishart, J.G. (1993) ‘The development of learning difficulties in children with Downs syndrome.’ Journal of Intellectual Disability Research, 37, 389–403. Medline, ISI, CSA Wishart, J.G. (1996) ‘Avoidant learning styles and cognitive development in children’, pp. 173–206, in B. Stratford & P. Gunn. New Approaches to Down Syndrome. London : Cassell. Brahm Norwich, Chris Beek, Penny Richardson, Peter Gray (2004) Examining key issues underlying the Audit Commission Reports on SEN Policy Paper 1 (5th series) ,Journal of Research in Special Educational Needs 4 (2) Read More