Chapter 3: Deciding for Others - Adults

This is part of the online companion site to the book Medical Treatment: Decisions and the Law - The Mental Capacity Act in Action, edited by Christopher Johnston, written by members of 3 Serjeants' Inn and published by Bloomsbury Professional in 2010.

The site provides (1) updating material as it becomes available and (2) hyperlinks to website addresses given in the hard copy. The material is organised according to the book's chapter headings. Click on the chapter headings on the left-hand side to access the material for other chapters.

Updating material

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Update to Chapter 3 (Deciding for Others – Adults), paragraph 3.6 [The obligation to treat in accordance with expressed wishes]

Tension over “do not resuscitate” orders

Guardian, 26th August 2011, “Do not resuscitate: final word is with medical staff, whatever patient feels – GMC says there is no obligation to prolong life if doctors think treatment not in patient's best interests”

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Update to Chapter 3 (Deciding for Others - Adults), paragraph 3.13 [Determination of best interests]

Added 7.3.11 – Consultation with family members may be required to meet both s4(7) MCA and public law requirements

In R (W) V Croydon London Borough Council, 3rd March 2011, the High Court held that a local authority had acted unlawfully by deciding to transfer a young adult who lacked capacity to a new placement without proper consultation with his parents, as required by the National Assistance Act 1948 (Choice of Accommodation) Directions 1992.

Ouseley J gave an extempore judgment and the transcript is awaited.

Update to paragraph 3.9 [The Mental Capacity Act 2005]

The developing case law on deputies: As to whether the appointment of a deputy is appropriate, see MCA s16(4) as considered in:

G v E, Manchester City Council & F [2010] EWHC 2512 (COP) (Fam). Amy Street represented E by his litigation friend the Official Solicitor. Baker J considered in detail the principles relevant to the decision whether to appoint a deputy, in particular s16(4) MCA. (Link to source) 

Re P [2010] EWHC 1592 (Fam), in particular paragraph 8. This is the case of internationalpianist Derek Paravicini, also the subject of the decisions reported as Independent News Media v A concerning press attendance in the COP [2010] EWCA Civ 343. (details)

London Borough of Havering v LD & KD, 25th June 2010, in particular paragraph 42 (details)

Baker v H (Practice Note) [2010] 1 WLR 1103. The case concerns the issue of securities, but for a general comment on s16(4) see paragraph 32. 

In relation to deputies see also:

EG v RS, JS and BEN PCT, 3rd August 2010 (details)

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Update to paragraph 3.13 [Determination of best interests]

'Best interests' test is Article 5 compliant in the deprivation of liberty context

In G v E v Manchester City Council v F [2010] EWCA Civ 822, the Court of Appeal rejected G's argument that Article 5 established distinct threshold conditions which had to be satisfield before a best interests assessment can be carried out in relation to someone who lacks capacity to decide matters relating to care and residence etc. In other words, the best interests regime under the MCA is Article 5 compliant.

Amy Street represented E by his litigation friend the Official Solicitor. (Link to source)

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Update to paragraph 3.13 [Determination of best interests], footnote 3

Developing case law on the weight to be given to P’s wishes

In the matter of P must be read subject to Re M, ITW and Z [2009] EWHC 2525 (Fam). See in particular paragraphs 31-6, setting out observations in relation to taking into account P’s wishes and the general scheme of ss1-4 MCA. 

For an example of a case in which an individual’s wishes could not be given considerable weight (because of her failure to understand her circumstances) see DCC v EH [2009] EWHC 784 (Fam).

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Update to paragraph 3.13 - Determination of best interests

21/07/09: Observations of Court of Protection Senior Judge on the duty to consult under s4(7)(b) Mental Capacity Act 2005

In the context of a decision about an Enduring Power of Attorney, the Senior Judge made the following point of general application:

'The first line of section 4(7) provides that any best interests decision-maker 'must take into account, if it is practicable and appropriate to consult them, the views of' various categories of individuals. In my judgment, where any attempt at consultation will inevitably be unduly onerous, futile, or serve no useful purpose, it cannot be in P's best interests, and it would be neither practicable nor appropriate to embark on that process in the first place.'

Details

Added 18/12/09 

Hyperlinks
Paragraph 3.1 - Footnote 3:
See here  and in particular sections 1–6, 8 and 9.
 
Paragraph 3.9 - Footnote 1:
Summary of the Act by the Department of Constitutional Affairs: details