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Mental capacity is the ability to retain, process, and weigh up information to provide a completely objective decision independent of any cognitive impairment present. Awareness of an individual’s mental capacity is important for all healthcare professionals. Mental capacity and capacity assessments are guided by the legal framework; the Mental Capacity Act 2005. Mental capacity assessments enable practitioners to determine if a patient is able to make reasoned decisions independently, or whether the patient requires assistance in their best interests and are decision and time dependent. Therefore, capacity can fluctuate over time and if someone is deemed to have no capacity on one occasion this does not mean that they should be assumed to consistently lack capacity. The act delivers five key principles to follow in order to determine whether an individual has or lacks mental capacity.

When is it lawful not to resuscitate and when is it unlawful? What is the meaning of mental capacity on the part of the patient and what is meant by patient autonomy? What is the extent of clinical discretion in decisions not to resuscitate? Does the presumption in favour of life still obtain? What about the risks in cardiopulmonary resuscitation? What have the judges decided about decisions not to resuscitate, and what is the contemporary role of the doctor in this area? Is there any need for change or reform?

This paper considers the potential for the Mental Capacity Act (MCA) of England and Wales to incentivise the exclusion of people with dementia from research. The MCA is intended to standardise and safeguard the inclusion of people with cognitive impairments in research. This entails various procedural requirements, which in pressurised research contexts can lead researchers to exclude people with dementia as a means of simplifying bureaucratic constraints. I consider the risks of an ‘unethical ethics’, wherein procedural ethics indirectly causes the exclusion of people with dementia from research, undermining historic successes toward increased inclusivity. I suggest several solutions, including enhanced sensitivity to impairments and shifting the burden of proof from justifying inclusion to justifying exclusion. The paper responds to the ‘ethics creep’ tradition in procedural ethics, and critical appraisals of capacity legislation in dementia research. This approach recognises that institutional research ethics is itself a major ethical concern and can unwittingly beget unethical practices. Dementia researchers must be alert to such unethical ethics.

The Mental Capacity Act (MCA) 2005 marked a turning point in the statutory rights of people who may lack capacity. The legislation sought to place the individual at the centre of decision-making and was viewed as having the potential to give people a voice and an opportunity to be heard. Section 44 of the legislation introduced a criminal offence of ‘ill treatment or neglect’ of a person who lacks capacity. The maximum sentence of five years’ imprisonment (or a fine or both) was intended to underly the seriousness of the offence, especially considering the vulnerability of potential victims. Interpreting s 44 has, however, proved a real challenge and the courts have acknowledged the difficulties which its drafting presents. The recent Court of Appeal (COA) decision in R v Kurtz is illustrative of the kind of issue that the statute has generated. The court was tasked with deciding whether proving a lack of capacity on the part of the victim is required when the donee of a power of attorney is charged with the offence under s 44(1)(b). This article considers Kurtz within the context of the MCA 2005 and notes three related COA decisions. It examines what impact Kurtz may have on future prosecutions brought under s 44(1)(b) and considers the future of the s 44 criminal charge more generally.

Despite laudable intentions, since its inception, the Mental Capacity Act 2005 of England and Wales (MCA) has proved to be a controversial piece of legislation. The majority of legal scholarship has concentrated on the problems created by the Act in relation to the treatment of incapacitated patients. However, there is an additional and somewhat unexplored dimension to the MCA, that of research. We argue here that the research provisions of the MCA are poorly drafted and do not provide an appropriate balance between protection and empowerment. We also assert that contrasting obligations and expectations are placed on different parties in the approval process, which creates a blurred sense of responsibility and a potential chilling effect.

Implicit in the assertion that an individual has consented to/has capacity to decide, is the concept that the individual has understood that which needed to be understood, retained the same and used/weighed this information as part of their decision-making process and thereafter communicated their wishes in whatever way possible. What invariably underpins the decision-making process is the information available to the individual (relevant information) and how this information is influenced by the functioning of their mind/brain. Consent given without an individual having processed the information relevant to the decision at hand is arguably invalid. This paper seeks to draw attention to the underpinning role of “what the patient needs to know” – (relevant information) in the correct determination of an individual's decisional capacity.

This article explores participation in Court of Protection (COP) proceedings by people considered vulnerable. The article is based on original data obtained from observing COP proceedings and revie...

This article considers the hard-earned lessons that New Zealand might draw from developments in English mental capacity law that should inform a comprehensive review of New Zealand’s equivalent adult guardianship legislation, the Protection of Personal and Property Rights Act 1988. The United Nations Convention on the Rights of Persons with Disabilities, and the shift towards supported decision-making, requires State parties to rethink domestic laws and engage with the key concepts of this important human rights convention. The most significant development under the Mental Capacity Act (England and Wales) 2005 is the identification of the so-called ‘Bournewood gap’ and the realization that the common law doctrine of necessity provides inadequate procedural safeguards for people with impaired capacity who are unable to consent or object to their healthcare and living arrangements. In addition, the ‘best interests’ standard for decision-making in English law has evolved with a greater emphasis on support for the exercise of a person’s legal capacity into this standard. This article argues that these developments should influence reform of New Zealand’s mental capacity law.

South Africa’s Children’s Act 38 of 2005 requires health professionals to determine whether a child possesses ‘sufficient maturity’ and ‘mental capacity’ to make decisions about themselves in relation to surgery, treatment, and HIV testing. Similarly, the National Health Act 61 of 2003 requires a child to be ‘capable of understanding’ to provide informed consent in research. However, neither the Children’s Act nor the National Health Act defines these terms. Moreover, there is no common definition of ‘sufficient maturity’ among healthcare professionals in South Africa. Appreciating how foreign law interprets ‘mental capacity’ and how different healthcare professionals evaluate ‘maturity’ could prove illuminative in respect to how these terms could be interpreted by health professionals in South Africa, and elsewhere.

‘The decision on capacity is one for the judge to make’. 1 Deciding whose voices matter in the assessment of someone’s decision-making capacity raises issues of social and legal policy. Despite legal judgments explicitly asserting that the law has the upper hand in mental capacity assessment, both statute and judgments from the Court of Protection (CoP) have to some extent endorsed capacity as largely the domain of medical expertise. Academics have claimed that the courts have historically adopted a ‘deferential’ or even ‘medicalized’ approach to expert evidence on this issue. Yet, it is vital that the CoP exercises rigorous scrutiny of capacity assessment, for while human rights discourse constructs ‘objective medical expertise’ as a safeguard against the arbitrary forfeiture of decision-making power, excessive deference can transform medical opinion from safeguard to a form of arbitrariness in its own right. This short sociolegal study combines quantitative and qualitative approaches to probe this suggestion of deference, drawing from a sample of over 60 CoP judgments where the issue of capacity was examined in some detail. In the course of undertaking this task, the article interrogates the notions of ‘deference’ and ‘medicalization’ to explore the intertwining of medical and legal domains on the issue of mental capacity.

The Mental Capacity Act 2005, covering England and Wales, sets out formal tools to extend autonomy past the onset of incapacity that protect an individual’s right to retain autonomy in decision-making. Despite policy drivers who encourage healthcare professionals to support advance decision-making for future care, very few individuals living with frailty engage in doing so. In this article, we interrogate these issues using data from a qualitative study of older people living with frailty, which engages with how those living and coping with varying degrees of frailty experience their situation day to day and their perceptions of planning for incapacity and decision-making. After critically evaluating the viewpoints of older people living with frailty and their carers, we assess the significance of their perceptions for the contemporary debates surrounding autonomy and how they align with the policy perspectives and the clinical practice of advance care planning.

This article examines the ethical and legal issues raised by the involuntary sterilization of men with intellectual disability. It traces how, after the demise of eugenic reasoning, social policies of normalization and care in the community provided new justifications for sterilizations. It also examines how, ironically, modern arguments about promoting male sexual freedom have come to be used as a justification to sterilize. Through examination of recent cases on the sterilization of men with intellectual disabilities, this article explores the legal framework of the ‘best interests’ test and the ‘least restrictive alternative’ provisions in the Mental Capacity Act 2005 and argues that sterilization is usually unnecessary, disproportionate and not the least restrictive option. It also argues that the least restrictive alternative provisions contained in the 2005 Act need to be more rigorously applied.

The assessment of mental capacity is a skill that every GP uses in all consultations. The majority of patients have mental capacity to make treatment decisions. Capacity is presumed until proven to be lacking. However, patients can lose their ability to make treatment decisions for a range of reasons, and decisions may need to be made on their behalf. The loss of capacity may be permanent or temporary, and these clinical decisions may ultimately be a matter of life or death. Capacity is considered situation-specific, and thus should be judged separately for each decision faced by the patient. This article gives an overview of the main pieces of legislation in the different legislative areas of the UK: England and Wales, Scotland, and Northern Ireland; and assists the GP in navigating the practicalities of applying the legislation to clinical cases to allay anxieties around working in this area.

Most patients in intensive care units lack mental capacity to inform decision-making, whether because of drugs or disease. The introduction of the Mental Capacity Act in England and Wales in 2005 has changed the way that doctors and institutions deal with patients who lack capacity. This is especially true when physical, mechanical or pharmacological restraints are used to allow the patient's treatment. Recently, the Supreme Court has ruled that if a person is under continuous supervision and control, and is not free to leave the place they are being treated, then they are deprived of their liberty. This article explains the ramification of this ruling for patients in intensive care whose care must now meet Deprivation of Liberties Standards. The procedures both for staff caring for these patients and for the Trusts where they are receiving care are described.

The Mental Capacity Act 2005 provides the legal framework in England and Wales for the making of decisions in respect of people who have never had or have lost decision-making capacity. As part of a 5-year research program investigating the implementation and adoption of the Mental Capacity Act in dementia practice, we interviewed staff working in different care homes at two time points (32 staff at Time 1 in 2008 and 27 staff at Time 2 in 2012) in South East England. At baseline Time 1, daily practice seemed to resonate with Mental Capacity Act principles of respecting decisions and trying to act in a person’s best interests. This paper reports Time 2 findings. We found that few care home staff interviewed specifically reported finding the Mental Capacity Act helpful in crystallizing the legal basis of their work. Most continued to offer illustrations of day-to-day practice in which they paid attention to individual choices, took account of the wishes of residents’ families, and tried to act in residents’ best interests but referred major decisions to their seniors. This study highlights the potential of referring to specific day-to-day practice in care homes when offering training or scrutinizing practice in dementia care more generally so that the work is set in its legal as well as moral framework. Care home staff in this study reported that advanced planning and pre-specifying preferences were more common among new care home residents, especially those with dementia, indicating that greater understanding of these is required by staff.

Dental interventions can only occur within a legal framework. This means either the patient gives their informed consent to the procedure or, if this is not possible, an assessment is made whether they lack the ability to consent, in which case a decision on treatment is made under the Mental Capacity Act (MCA).1 This article takes a brief look at how the MCA sets out the test of capacity, who makes decisions when the patient is unable to do so and how ‘best interest’ decisions are made in a way that protects the rights of the patient and protects the dental professional from legal liability.

The Mental Capacity Act (2005) was designed to protect and empower patients with impaired capacity. Despite an estimated 40% of medical inpatients lacking capacity, it is unclear how many patients undergo capacity assessments and treatment under the Act. We audited the number of capacity assessments on the general medical wards of an English-teaching hospital. A total of 95 sets of case notes were reviewed: the mean age was 78.6 years, 57 were female. The most common presenting complaints were feeling ‘unwell’ ( n = 25) and confusion ( n = 24). In all, 52 patients had conditions, such as delirium ( n = 26) and dementia ( n = 15), which often impair capacity. Capacity was assessed in seven (7.4%) patients, all of whom disagreed with the medical team about their treatment. The number of documented assessments fell short of the estimated rate of incapacity, suggesting that some means of improving capacity assessment in busy medical environments is required.

These words ring true today in relation to people with an intellectual disability, and reducing clinical risks associated with care whilst in an acute hospital setting. Clinicians must do what is necessary, and thereby doing what is required for all people being mindful of the need to adapt services, and the care they provide to ensure reasonable adjustments are made to enable more positive outcomes and experiences. This article addresses these, and other issues by using examples of a hospital passport, assessing the mental capacity of a person, and how to improve care provided and reduce clinical risks for people with intellectual disability. Hospitals and Accident and Emergency departments in particular are frenetic environments which are loud, bizarre and frightening for many people. For people with intellectual (learning) disabilities it can seem a very petrifying environment within which to make sense of what is happening and to navigate. These same feelings often present for doctors and nurses when seeking to assess, treat and ensure safe reasonable care takes place for people with intellectual disabilities. Too frequently the training undertaken by clinical staff has not prepared them for working with people with intellectual disabilities in these high-pressure environments. This is particularly pertinent to health staff in general healthcare where staff in those settings have

Previous studies suggested that patients with mild cognitive impairment (MCI) or dementia can have impaired and declining financial skills and abilities. The purpose of this study is to test a clinically applicable method, based on the contemporary legal standard, to examine directly the mental capacity to make financial decisions and its component decision-making abilities among patients with MCI and early dementia. A total of 90 patients with mild Alzheimer disease (AD), 92 participants with MCI, and 93 cognitively normal control participants were recruited for this study. Their mental capacity to make everyday financial decisions was assessed by clinician ratings and the Chinese version of the Assessment of Capacity for Everyday Decision-Making (ACED). Based on the clinician ratings, only 53.5% were found to be mentally competent in the AD group, compared with 94.6% in the MCI group. However, participants with MCI had mild but significant impairment in understanding, appreciating, and reasoning abilities as measured by the ACED. The ACED provided a reliable and clinically applicable structured framework for assessment of mental capacity to make financial decisions.

The hospital's clinical ethics committee sought to gauge health-care professionals’ level of knowledge and usage of the Mental Capacity Act 2005 within the hospital trust. The hospital's personnel were asked to complete a 10 part questionnaire relating to the basic contents of the Act. Four hundred questionnaires were distributed and 249 (62%) were returned completed and valid for analysis. A ‘pass-mark’ of 70% (7/10) was assumed; the results showed that 48% of respondents scored ≤ 50% (≤5/10), 74% of respondents scored

In this first-ever systematic review of fetal alcohol spectrum disorders in all federal court cases arising prior to 2011, the authors identified 1713 cases, with 131 cases substantively relevant to mental capacity, criminal intent, sentencing, and attorney malpractice. The majority of cases arose after Atkins v. Virginia, the pivotal Supreme Court case that prohibits the death penalty for mentally disabled persons. Among other things, this study reveals that FASD evidence usually defeats a death penalty sentence, but the lower courts reflect inconsistencies in how courts receive and handle mental health evidence.

Specialist community dementia nurses are an appropriate sample to investigate longer-term decision-making and end-of-life care planning. Implemented in 2007, the Mental Capacity Act (MCA) provides opportunities for assisting with planning and making decisions on others' behalf, and may be expected to be entrenched within clinical practice. We conducted follow-up qualitative interviews with 15 community-based dementia nurses to detect changes and developments in views and practices of the MCA. Thematic analysis identified recurrent themes and developed into a coding framework. At Time2, there was greater awareness of general and specific principles of MCA and greater confidence in using it. There was greater involvement in discussing planning finances, less so in end-of-life-care. Some participants were concerned about lack of understanding amongst other professionals and felt more public awareness was required. Supplementary training, opportunities for mentoring and supervision may develop greater confidence among dementia practitioners and support their roles in informing and advising people with dementia and carers.

Incapacitated patients must be treated in their best interests according to the Mental Capacity Act 2005. As a result of this statute, the General Medical Council has advised that the testing of incapacitated source patients for HIV following occupational needlestick injury is unlawful. In this article, the reasons for the introduction of the Act are outlined and the impact of the legislation on the profession discussed. It is argued that it is in the patient's medical best interests to know if they are HIV positive so that they can be treated appropriately whilst they are incapacitated on ICU and begin timely medical therapy. It is in their social, emotional, cultural and religious best interests to be tested so that they can alleviate the anxiety of the injured healthcare worker, change their behaviour to avoid further spread and contribute to wider society as a ‘good egg’. It is concluded that the GMC has misunderstood the meaning of best interests and that their advice should be revised to allow testing to occur.

The Mental Capacity Act 2005 has stipulated that in England and Wales the ethical implications of carrying out research with people who are unable to consent must be considered alongside the ethical implications of excluding them from research altogether. This paper describes the methods that were used to enable people with severe and profound intellectual disabilities, who lacked capacity, to participate in a study that examined their experience of receiving intimate care. The safeguards that were put in place to protect the rights and well-being of participants are described, and it is argued that the approaches used in this study met the requirements set out in the Mental Capacity Act 2005. Although this paper is based on research involving people with intellectual disabilities, it has implications for research involving other groups who may also lack capacity to consent, including people with mental health problems, head injuries and dementia.

This article is the second of two describing the impact of the Mental Capacity Act on the practice of intensive care medicine in the UK. This article concentrates on the impact on clinical research. Intrusive research in incapacitated patients that does not involve trials of medicines or non-identifiable data is covered by the Act. Research must have Ethics Committee approval and must have some chance of benefiting the research subject or provide information about the disease without causing risk to the patient or being unduly invasive or restricting the patient's freedom. It is the responsibility of those engaged in clinical research to be aware of the requirements of the Act and to interpret and implement it appropriately.

GPs may be required to assist in the administration of Mental Health or Mental Capacity Legislation. Although infrequent, this process can be complicated and time consuming. Due to different legal systems, the role of the GP in civil commitment varies considerably throughout the UK. This article aims to give a brief overview of the main pieces of legislation in the different areas of the UK, England and Wales, Scotland and Northern Ireland, and to assist the GP in navigating the practicalities of applying the law to clinical cases.

In this second Five-Minute Focus on Law on mental health, we consider how the law deals with the treatment of those who are mentally disordered. Before doing so, it is important to note that it should not be assumed that a person who is mentally disordered under the Mental Health Act (MHA) 1983, as amended by the MHA 2007,1 is necessarily incapable of making decisions about their health. Indeed, in one of the most widely known cases involving a patient who was mentally disordered – Re C (Adult: Refusal of Medical Treatment) [1994] – it was held that a person with paranoid schizophrenia did have the capacity to refuse to consent to his gangrenous leg being amputated.2 It is thus important to distinguish between those who lack capacity and fall within the terms of the Mental Capacity Act (MCA) 2005 because they are unable to make decisions about and for themselves, and those who are mentally disordered within the MHA 1983 and may pose a risk to themselves and others even though they have decision-making capacity. Under the MHA 1983, competent mentally disordered patients have the same right to refuse medical treatment as all other competent patients, but the Act does allow those who fall within its parameters to be treated without their consent in specific circumstances.

The Law Commission published Consultation Paper No. 197 in October 2010 on unfitness to plead. Among the many issues to be covered were: an examination of the test for capacity which is narrower than the test for capacity under the Mental Capacity Act 2005; the scope of the trial of facts; and whether accident, mistake or self-defence could be raised as part of the defence in the context of unfitness to plead. This article will examine some of the proposals made in the Law Commission's Consultation Paper with particular focus on the meaning of capacity, along with the scope and limitations of the current law on unfitness to plead.

The Mental Capacity Act (MCA) was fully implemented in England and Wales in October 2007 and has relevance for the care home sector through its focus on decision-specific assessments of capacity. This article reports on research that forms part of a five year programme exploring evidence-based interventions in dementia and this article draws on part of the research that was designed to identify issues relating to implementation of the Act. Specific research questions for this study pertain to staff abilities to incorporate a new legal framework addressing mental capacity into care of people with dementia. Qualitative interviews with 32 staff in one group of care homes in Southern England demonstrated that, regardless of knowledge of MCA, the daily working ethos of staff appeared to be within the remit of Act. Training could therefore continue to build on these principles. However, considerable variation in understanding of terms and principles of the MCA was found. Few participants were aware of specific legislative points and offered ‘common sense’ explanations for their actions and decision-making. This level of knowledge may not meet regulators’ requirements or the needs of residents.

This paper discusses the early implementation of the Mental Capacity Act 2005 in health and social care in England. The author examines the research evidence to date, particularly monitoring data from the Department of Health, in order to review the progress made in implementation. The extent to which the Act is achieving its overall aim of facilitating decision-making by people lacking capacity is discussed, focusing on people with dementia. The author concludes that the initial implementation of the Act (and the related Deprivation of Liberty Safeguards) has had only limited effectiveness in facilitating decision-making by people lacking capacity, promoting their best interests and protecting their liberty. Future implementation needs to ensure that the rights of people lacking capacity, particularly people with dementia, are taken more seriously in health and social care and are better protected.

The issues raised by mental ill health and the treatment of those who are deemed to be mentally disordered have long been debated within health-care law. Mental health law is distinctive because it can be used to authorize involuntary detention and compulsory treatment.1 We had originally intended to cover the law on assessing, detaining and treating those who are mentally disordered in one Five-Minute Focus on Law, but having embarked on this task it soon became clear that a summary of the law would take more than one article. In this Five-Minute Focus, Part I, we consider mental health law in England and Wales with regard to assessing and detaining mentally disordered patients. In the following edition of this journal, we will address the matter of treating such patients.

The Mental Capacity Act (MCA) 2005, covering England and Wales, provides a statutory framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. The Act came into force during 2007 and applies to everyone ‘habitually resident or present in England and Wales’. Essentially it has translated in to law what has always deemed to be best practice. However it is vital that all healthcare professionals be familiar with the MCA and its accompanying Code of Practice. This article is aimed at those working in the critical care environment and will help to clarify some of the issues raised by the MCA.

This article examines whether the Mental Capacity Act 2005 has or should change the approach of the courts in assessing damages for protected parties in clinical negligence/catastrophic personal injury claims.

Mental capacity is the ability to make decisions, and this ability becomes especially important when the decisions may have legal ramifications. Since the Mental Capacity Act 2005 (MCA) and the accompanying Code of Practice (The Code) came into force in 2007, there has been an increased emphasis on the assessment of mental capacity. GPs are now expected to be able to assess mental capacity regarding a wide range of matters. This article gives an overview of the legal background, the ways in which capacity can be assessed and the occasions when it may be necessary.

Background The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 in England and Wales. Methods A pilot qualitative study using thematic analysis examined the experience of consultants in old age psychiatry in the early implementation of the MCA using a questionnaire designed to ascertain the experienced difficulties and the positive experiences of implementing the MCA, and its impact on their workload and associated changes in staffing levels. Results Fifty-two (27%) of the 196 consultants in old age psychiatry returned usable questionnaires. Eleven categories of difficulties and nine categories of positive experiences in the implementation of the MCA were reported. Two-thirds of respondents reported an increase in their workload, but over 90% reported no associated changes in staffing levels. Conclusions The factors contributing to the experienced difficulties and positive experiences in the implementation of the MCA require careful identification because strategies to lessen the difficulties and to maintain positive experiences need to be developed. The definitions of restraint and deprivation of liberty used in clinical practice and the overlap between these definitions requires careful study. The workload of clinicians in the context of implementing the MCA requires ongoing monitoring.

Since October 2007 staff across health and social care services in England and Wales have been guided by the Mental Capacity Act (2005) in the provision of care for those who may lack capacity to make some decisions for themselves. This paper reports on the findings from a study with 26 staff members working in three palliative and three neurological care centres. Semistructured interviews were used to gain an understanding of their knowledge of the Mental Capacity Act, the issue of capacity itself and the documentation processes associated with the introduction of the Act and in line with advance care planning. Within this setting advance care planning is a key part of care provision and the mental capacity of service users is a regular issue. Findings show that staff generally had a good understanding of issues around capacity but felt unclear about some of the terminology related to the Mental Capacity Act, impacting on their confidence to discuss issues with service users and complete the documentation. Many felt the Act and its associated documentation had aided record-keeping in an area staff already delivered well in practice. Advance care planning in the context of the Mental Capacity Act is not as well embedded in practice as providers would like and consideration needs to be given to how and when staff should approach these issues with service users.

Restraint has recently become an important legal and clinical issue in England and Wales with the introduction of the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards introduced by the Mental Health Act 2007. The requirements of these two new pieces of legislation are complex, and therefore pose major challenges to the provision of high quality and patient-centred care, support and treatment in a range of health and social care settings. In this paper, the legal and ethical aspects of physical restraint in an acute medical care environment are considered, and practical guidance is provided to individuals adopting methods of restraint to care for general hospital patients. Aspects of the Introduction below are written in the first person to reflect the personal experiences of the lead author.

The Mental Capacity Act 2005 placed for the first time research concerning adults lacking mental capacity upon a statutory footing. However, while the legislation which regulates the inclusion of such adults in ‘intrusive research’ safeguards researchers and research participants alike some controversy remains as to its implementation. This paper focuses upon two specific issues raised by the legislation. First, what constitutes ‘intrusive’ research and whether all issues concerning research involving adults lacking mental capacity should be referred to NHS research ethics committees. Secondly, the role of one of the statutory safeguards–the ‘consultee’. These are individuals who are to be consulted regarding the inclusion of adults lacking mental capacity in research. It contrasts the ‘personal’ and ‘nominated’ consultees and considers whether there is a risk that the legislation may result in a new ‘quasi profession’ of consultees in the future.

This article sets out a scenario highlighting some of the issues to be faced by NHS hospitals when dealing with patients who may require treatment under the Mental Capacity Act 2005. The article sets out matters to consider when dealing with patients in A&E, assessments of best interests, emergency treatment, lasting powers of attorney and transferring patients to nursing homes. All of these matters come under the remit of the Act.

Objectives To examine attitudes to the Mental Capacity Act's new statutory Independent Mental Capacity Advocate (IMCA) service in England and Wales and consider the implications for its delivery. Methods Quantitative data describing all referrals to the seven pilot IMCA services (January 2006-March 2007) and qualitative data from semi-structured interviews with 18 doctors, 21 senior nurses and one discharge planning manager in four general hospitals in England. Results Of 127 hospital-based referrals to the seven pilot IMCA services, 29 (23%) were for patients facing serious medical treatments, 52% of whom were judged to lack decisionmaking capacity due to a learning disability; ninety-eight (77%) were for patients facing a change of accommodation upon hospital discharge, 62% of whom were elderly and lacked capacity due to dementia. While aware of the potential benefits of the IMCA service, clinicians were generally negative about the contribution advocates could make to patients’ medical care and thought they could only contribute usefully in a minority of ethically complicated decisions. In contrast, they were more positive about the involvement of advocates in hospital discharge decisions and hoped that they would improve current discharge practice. Conclusions Clinicians held ambivalent attitudes towards the involvement of a statutory IMCA service in medical decisions, reflecting beliefs that the service was largely impractical and unnecessary given current procedures for making medical decisions in patients’ ‘best interests’. Conversely, clinicians were more likely to support advocacy in discharge decisions because they believed that non-medically qualified advocates could make a valuable contribution to decisions that were seen as predominantly social and where practice was frequently considered deficient. By holding these beliefs, clinicians are failing to have due regard for the IMCA service as a statutory measure for safeguarding patients’ interests.

Hannah Arendt develops an immensely attractive account of `judgment', both as a supremely important human mental capacity and with respect to its place in political life, and this account rightly draws attention from a broad array of political theorists. Her essay `Truth and Politics' is one of the texts in which she first articulates this account of judgment. However, the account of truth offered in that essay is full of both puzzles and problems — notably, the puzzle of why Arendt, committed as she is to elevating the dignity of political life, thinks she needs to drive a wedge between politics and truth to the extent that she does in her account of the relation between them. The question pursued in this article is: why does Arendt think that, in order to give judgment and opinion the dignity that are appropriate to them, she needs, as it were, to slander truth as `coercive', `tyrannical', and so on?

This article considers the provisions of the Mental Capacity Act 2005 in respect of advance decisions. It considers the new statutory regulation of advance directives (termed 'advance decisions' in the Act) and the formalities necessary to effect an advance decision purporting to refuse life-sustaining treatment. The validity and applicability of advance decisions is discussed with analogy to case law and the clinician's reasonable belief in following an advance decision is considered. The article assesses the new personal welfare Lasting Powers of Attorney, the situation where an attorney purports to refuse life-sustaining treatment on behalf of the donor, and the contrast between best interests and substituted judgment.

When does the High Court (Family Division) have power to make a life-or-death decision for a person who lacks capacity to decide for themselves? The inherent jurisdiction and its basic principles are described. Power is to grant declaratory relief (in adult cases). Contrast the position where an adult is capable of making an autonomous decision, or the position under the Mental Health Act 1983. Examples are given of recent extensions of the jurisdiction; and prospective changes under the Mental Capacity Act 2005. Particular issues relating to withholding or withdrawing life-sustaining treatment, and the distinction between omissions and positive acts causing death are discussed. When a court decision is needed on withholding life-sustaining treatment to a patient, other than one in PVS, is left unclear. The nature of the test to be adopted in reaching such decisions is described, as are the circumstances in which advance directives refusing treatment are binding, and the significance of views and wishes falling short of an advance directive; an example is given of the dilemmas that can arise.