New Court Of Protection Research Articles

The Use of Neuroscience and Psychological Measurement in England's Court of Protection.

The 2005 Mental Capacity Act of England and Wales provides a description in statute law of a test determining if a person lacks “mental capacity” to take a particular decision and describes how the “best interests” of such a person should be determined. The Act established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts. Human rights organisations and others have raised concerns about the nature of assessments for incapacity, including the role of brain investigations and psychometric tests.Aim: Describe use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings.Method: Quantitative review of case law using all CoP judgments published until 2019. The judgments (n = 408) were read to generate a subset referring to structured testing (n = 50). These were then examined in detail to extract the nature of the measurements, circumstances of their use and features of interpretation by the court.Results: The 408 judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. 120/146 (82.2%) referred to “impairment of mind or brain,” with this being part of assessment for incapacity in 58/146 (39.7%). Measurement referred on 25/146 (17.1%) occasions to “functional decision-making abilities.” Structured measures were used most commonly by psychiatrists and psychologists. Psychological measurements comprised 66.4% of measures. Neuroimaging and electrophysiology were presented for diagnostic purposes only. A small number of behavioural measures were used for people with disorders of consciousness. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once. Judges rarely integrated measurements in their capacity determinations.Conclusion: Structured testing of brain and psychological function is used in limited ways in the Court of Protection. Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom.

Will the New Court of Protection Damage Your Mental Health?

<p>This article is based on a lecture delivered by Professor Ashton at the North East Mental Health Law Conference 2006. In it he addresses the challenges faced by the new Court of Protection in four specific areas: care delivery, discrimination, access to justice and human rights.</p>

The Mental Capacity Act and the new Court of Protection

<p>The Mental Capacity Bill was introduced in the House of Commons on 17 June 2004, and received the Royal Assent on 7 April 2005.</p><p>The Act, which has been fifteen years in gestation and involved an extensive consultation process, abolishes the existing Court of Protection, and replaces it with a new court, also to be known as the Court of Protection, which will have jurisdiction to deal with all areas of decision-making for people who lack capacity. Thus, it will combine the personal welfare and healthcare jurisdiction currently exercised by the Family Division with the property and financial decision-making jurisdiction of the present Court of Protection. The new court will be regional, served by a centralised administration office and registry.</p><p>It is important for people with disputes or problems to have access to the most effective means of resolving them, and in many cases the existing health and social welfare mechanisms, mediation or discussion will be sufficient. Although no one will be compelled to mediate before going to court, the current policy is that the new court should be the last resort for the resolution of complex or particularly sensitive cases, or when other forms of dispute resolution have been tried without success.</p>

The Legal Authority to ‘More Than Merely Restrain’ Incapacitated Patients: The Interface Between the Mental Capacity Act and the Revised Mental Health Act in England And Wales

The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 within England and Wales as a framework for making decisions about incapacitated persons' care and treatment generally not amounting to a deprivation of their liberty (although such could be authorised under its powers by the new Court of Protection). From a planned date of April 2009, the MCA is to be enlarged by the provisions of the Mental Health Act 2007 (MHA 2007) to encompass deprivation of liberty, with the addition of a new framework of Deprivation of Liberty Safeguards (DOLS). The MHA 2007 also revised significant aspects of the Mental Health Act 1983 (MHA), which were implemented in November 2008. The interface between the MCA, as amended to include DOLS, and the revised MHA is complex and potentially ambiguous. This paper describes in detail some issues that may arise at the interface of the two acts, and seeks to inform professionals involved in the use of these legal frameworks of the resulting complexity.

Implications of the Mental Capacity Act 2005 for adult health and social care service providers

This paper assesses the impact that the Mental Capacity Act 2005 has had on service providers, the level of understanding of the Act in practice, and changes to the regulatory framework by reference to the Commission for Social Care Inspection, the new Court of Protection and the Office of the Public Guardian. It gives examples of key issues where there is evidence of some misunderstandings about the provisions and operation of the Act. It identifies practical steps that managers need to address, in particular in relation to policies, procedure and training, and in relation to contracts.

The Declaratory Judgement: Old and New Law in “Medical” Cases

The mental capacity act was fully implemented in october 2007. Under the act, a new Court of Protection will be established, which will, in addition to its many other functions, have the authority to deal with cases currently heard under the High Court's inherent jurisdiction. When making decisions on behalf of mentally incapacitated adults, the High Court has used its declaratory jurisdiction to great advantage in declaring not only the lawfulness/unlawfulness of actions, but also to ascertain whether or not a person is incapacitated and in the event that he/she is, what that person's best interests are. The Act has, to a great extent, codified these common law principles in its key provisions, but as it has not expressly superseded the common law, the new court is expected to rely on previous jurisprudence in the interpretation of the legislative provisions. This article thus examines the background and development of the declaratory jurisdiction and how this will influence the way in which the new Court of Protection will make decisions on behalf of mentally incapacitated adults in the future.

The Mental Capacity Act 2005: the new Court of Protection

The new Court of Protection is now considered in the series of articles on the Mental Capacity Act 2005. The Court of Protection was established on the 1 October 2007 and has a much wider jurisdiction than its predecessor. It can now hear cases concerned with the personal welfare of those who lack the mental capacity to make their own decisions, as well as issues relating to property and finance which were the sole concern of its predecessor. This article considers the powers, procedure, practice, rules and directions of the Court and its power to appoint deputies and their role. It also considers the new Office of Public Guardian and its role in keeping a register of Deputies and Lasting Powers of Attorney. It also considers the appointment of Special and General Visitors. The implications of these new institutions are reviewed in the light of a common situation involving healthcare practitioners.

Mental capacity and decision aking: definining capacity

The Mental Capacity Act 2005 came fully into force on 1st October 2007 (some sections came into force on 1 April 2007). This series of articles considers some of the key features of the Act, including the concepts of best interests, the lasting power of attorney, the role of the new Court of Protection, the Office of Public Guardian and the deputies of the Court, to name but a few. This first article looks at the central feature of the Act: how mental capacity is determined.

The Mental Capacity Act 2005

The Mental Capacity Act, which received Royal Assent in April 2005, will come into force in April 2007. The Act puts into statute the legality of interventions in relation to adults who lack capacity to make decisions on their own behalf. The aim of this paper is to outline the main features of the legislation and its impact on those health care professionals who provide care and treatment for incapacitated adults. The paper sets out the underlying ethical principles that govern interventions under the Act's powers and briefly explores the legal definition of incapacity and the process by which capacity is assessed. It looks at the governing notion of 'best interests' and at the legal indemnity provided by the Act for interventions that are in the best interests of an incapacitated adult. It contains sections on the Act's main innovations, including research involving incapacitated adults, lasting powers of attorney and the new Court of Protection. It also provides information on advance decisions to refuse treatment.