This chapter reviews the Mental Capacity Act (2005), and Deprivation of Liberty Safeguards (Liberty Protection Safeguards). It reviews how to assess capacity, using the two-stage test, followed by when it is appropriate to undertake best interests meetings. Some of the main decisions are reviewed which are likely to be relevant to people with dementia, such as care and residence, managing finances, and deciding on medical treatment.

This chapter discusses defences, which are a fundamental part of criminal law, and reflect important limitations on the proper scope of punishable conduct. It is the purpose of this chapter to set out and critique the law relating to defences, in both treaty-based and customary international law. This chapter is concerned with substantive defences; it does not deal with issues such as immunity, youth, ne bis in idem, or limitation periods.

This chapter will explore how the provisions governing best interests assessments ought to be reformed so as to better ensure that an agent’s authentic desires are being prioritised in decisions being taken about them. The starting point should be that the assessor ascertains ‘so far is reasonably practicable’ the individual’s wishes, feelings, beliefs, and values. This should then be supplemented by a presumption that the agent’s wishes and feelings will be determinative of what is in their best interests, except when giving effect to them will expose the person to a risk of significant harm. Even where the harms are significant, however, there will still be occasions where the agent’s wishes and feelings should nonetheless take precedence; where to do otherwise would involve frustrating their deeply and authentically held beliefs, values, or commitments. This chapter will highlight some of the potential considerations which ought to guide assessors in these circumstances. It will propose that assessors be provided with a list of factors that they must take into account when determining the degree of weight to be ascribed to the agent’s wishes, which reflect these considerations.

The Introduction summarises the core themes of the book and outlines how the argument will proceed over the course of its chapters. It explains why the issue it centres around – namely, how the law grapples with the impact of mental disorder on decision-making – is so important, and why successfully navigating the tension between respect for (and deference to) idiosyncratic values, and protection from disorder or impairment, must be a precondition of England and Wales adopting ‘fused’ mental capacity and health legislation, or a more CRPD-compliant statutory framework. It also explains how the book relates to the existing literature in this area, which has focused in recent years on concerns about the binary nature of the capacity framework, and on the individualistic and rational ‘liberal subject’ on which this framework rests. Finally, it elaborates briefly on some of the concepts which the book will draw upon, in particular what is meant by ‘values’ and ‘beliefs’.

The law adopts a cliff-edge approach to capacity, drawing a bright line between those who are deemed to have the capacity to make a decision and those who are not. This reflects Enlightenment ideas about the limits of legitimate state authority, according to which substantial justification is required before the state can interfere with the autonomous choices of its citizens. Given its role in distinguishing those who are capable of making autonomous choices (to whom the state defers) from those who are not, it is generally assumed that the test for capacity must be neutral as to the substance of the values, beliefs, or reasons underpinning any given decision, so as to leave proper space for individual autonomy. As a result, the Mental Capacity Act 2005 adopts a process-orientated account of capacity, which focuses on whether certain of the person’s cognitive capacities are intact, and not on the outcome of the decision, or on the substance or origins of values or beliefs which underpin it.

CL psychiatry is one of the newer sub-specialties of adult psychiatry and is concerned with the practice of psychiatry in non-psychiatric settings. Typically, this means in general hospital wards and outpatient clinics, although in some countries, it also includes liaison with primary care. In recent years, there have been important changes in general medicine relevant to CL psychiatry. There is now a much wider recognition of the high prevalence of psychiatric and physical comorbidity and how this influences consultation frequency, service utilisation, treatment adherence, the physical prognosis and probably the overall cost as well. The relationship between physical disease and mental disorder is influenced by biological factors contributing to psychological change in physical disease, psychological factors in physical disease, social factors and comorbidity. There has also been recognition of the high prevalence of non-organic complaints among general medical patients as well as an awareness of the high costs of investigating these patients, which has led to a search for better ways to manage this group of patients.

Collaboration between general medical and psychiatric staff is essential. Psychological treatment and psychotropic medication can be effective. Mental capacity is an important and sometimes complex issue.

Informal carers of people with dementia work with the person with dementia and with professionals to form a secure triangle of care. They make a huge contribution to the health and well-being of individuals and to the economics of care. They have rights recognised in legislation.

Unfortunately, they are often dismayed by the care received by individuals with dementia when admission to a general hospital becomes necessary. This can be avoided and much better outcomes achieved for all concerned if professionals work with informal carers throughout the process of considering admission, effecting admission, and living through admission to discharge or death. Informal carers do not constitute a homogenous group: they have a range of characteristics, strengths, and needs.

Some are old; many have pathology of their own and multiple responsibilities. They need to be listened to and to be respected.

Chapter 2 explains the historical and contemporary policy, legal and human rights contexts for decision-making by, with and for adults with cognitive disability. It describes the dominant narrative in the literature as depicting a journey from paternalism to autonomy, from exclusion to inclusion, and from discrimination to equality, aligned with three widely recognised models of disability – the charity, medical and social models. It explains that the book’s interpretation of Article 12 is founded on the acceptance of a social model of disability that acknowledges the residual impacts of impairment. The chapter explains the limitations of arguments favouring an interpretation of Article 12 as requiring that decision-making by substitutes be abolished. Such arguments privilege autonomy at the expense of other important human rights values and privilege the civil and political right to legal capacity over other civil, economic, political, social and cultural human rights.

Hong Kong currently lacks both a statute and local case law clarifying the legal status of advance directives, although a legislative framework has recently been proposed by the government. This chapter begins by tracing the development of advance directives in Hong Kong, leading up to the government’s legislative proposal. After a detailed discussion of this proposal, we consider the legal obstacles that must be overcome for advance directive legislation to be successfully introduced in Hong Kong, including deficiencies in mental capacity law. We then explore the local practice of advance directives, as well as the sociocultural values and influences that shape this practice, and the practical challenges in promoting wider use of advance directives in Hong Kong.

Chapter 1 provides an introduction to the work of the Court of Protection (CoP) and mental capacity law, before setting out the core concepts and arguments of the book. The key argument is that the CoP has not effectively achieved access to justice for the subject of proceedings, particularly through its failure to sufficiently place their voice and participation at the centre of its work. This chapter outlines the key issues raised, including the extent to which CoP proceedings involve people affected by its decisions, the type of evidence it considers in reaching decisions on mental capacity and best interests, the ways in which its processes and spaces operate, and use of alternative ways of resolving CoP disputes.

Details in written material may be used to challenge or support a person’s asylum case, usually relating to credibility. There may be intense scrutiny of clinical material by people without clinical training. Writing records, letters and reports for people seeking asylum requires careful attention to confidentiality and consent, use of impartial, precise language and distinguishing direct quotes from opinion and summary. Clinicians should record any disclosure of scars of physical injury even if they cannot conduct a physical examination. Records and letters may contain imprecision, uncertainty and errors and may be misinterpreted or given undue weight. Before releasing records, clinicians need to ensure consent is up-to-date and adequately informed, and to add a caveat about the limitations of such records. Clinicians may prepare letters or reports for use in legal proceedings acting in an everyday clinical role (as a professional witness) or as an expert witness.They may be asked to address issues such as: causation; reporting requirements; fitness to give evidence; capacity; vulnerable adult status; asylum support; fitness to fly; age dispute; fitness to fly; trafficking.

A formulation is an attempt to understand an individual’s predicament. In contrast, a psychiatric diagnosis is a way of categorising difficulties.Making a formulation or diagnosis is not a straightforward task, especially given differences of culture and power.It is helpful to think of both as constructed narratives.

With people seeking asylum, both present specific benefits, disadvantages and challenges.They can powerfully affect the person themselves, determine what help is offered and influence third parties, such as asylum decision-makers. A helpful approach to formulation and diagnosis depends on the therapeutic relationship and the clinician’s skill in working with differences in culture and power. Clinicians need tobear in mind how formulations and diagnoses depend on the quality of assessment and the cultural context in which they are embedded.

Formulations for people seeking asylum need to pay particular attention to culture, family, and physical health, and to the impact of the asylum process, of being a refugee, and of discrimination. Diagnoses should be made only after discussing formulation and considering the potential additional impacts of a diagnosis.

In the UK, decisions taken on behalf of patients who lack capacity must be in their best interests, but the meaning of ‘best interests’ has evolved. The Mental Capacity Act 2005 codified the law relating to adults who lack capacity, offering a checklist of factors relevant to best interests assessment, including the person’s ‘past and present wishes and feelings’ and the ‘beliefs and values that would be likely to influence’ their decisions. Since 2013, the courts have gone further and, in some circumstances, seem to treat the patient’s wishes as the decisive factor. Now, a gap exists between what the statute says and its judicial interpretation. Doctors seeking guidance on how to weigh the patient’s own wishes when making a best interests decision will receive divergent advice from the legislation, guidance from the National Institute for Health and Care Excellence (NICE), and the law reports. This chapter suggests this discrepancy is unnecessarily confusing for health care professionals, patients and their families. If there is, or should be, a rebuttable presumption in favour of making the patient’s wishes decisive, the law would preferably state this clearly and unequivocally.