Virtually all societies have found the need for containment and control of behaviour by physical means. The first words in any discussion about restraint must include the methods of avoiding the need for its use wherever possible. De-escalation, negotiation, meaningful activity programmes and the development of trusting relationships are the necessary first steps. This chapter focuses on the activity of restraint, assuming that due attention has already been paid to the methods of avoiding the need for its use.

Liaison psychiatry practice is built on a foundation of core ethical principles that apply wherever there are people needing mental healthcare (1). In the UK, liaison psychiatry is practised in accordance with the Human Rights Act 1998 (HRA) (2), the articles of the European Convention on Human Rights (ECHR) and the UN Convention on the Rights of Persons with Disabilities (CRPD).

The ability to make decisions (and thereby its assessment) can be complex. It may be affected by a combination of factors that vary between individuals. Even when cognitive functioning may be compromised (for instance, by dementia), a person may still be able to express important deep-rooted values underpinning their decisions. The circumstances may demand that these different elements are explored in greater or lesser detail in making conclusions about an individual’s decision-making capacity. This may add to the complexity of an assessment. From the outset, to make an adequately informed treatment or other decision, you must have sufficient information, be able to make the decision free from coercion and have mental capacity.

Notwithstanding the challenges, with appropriate thought, preparation and attention to documentation, it should be possible to record a legally defensible assessment of capacity for most situations that arise in clinical practice. The purpose of this chapter is to provide an accessible approach to capacity assessment and its recording.

The Mental Capacity Act (MCA) 2005 came into force in 2007 and covers England and Wales. It provides a statutory framework for anyone over the age of 16 who lacks capacity to make decisions for themselves, for whatever reason. The MCA was drafted by the Law Commission partly in response to the increased prevalence of dementia and the lack of legislation to deal with the challenges of so many people living longer and losing their ability to make decisions. It is the loss of ability to make decisions, because of the disease, which makes the key link between providing care and treatment with the application of the law. This is why the MCA is perhaps the most important of all the pieces of legislation we consider. The practical applications of the Act will be dealt with in more detail in the chapters to follow. More detailed guidance can be found in the Mental Capacity Act 2005: Code of Practice (for England and Wales), revised in 2022. We include some of the main amendments to the Code at the end of this chapter and these are also covered in the relevant sections of the book.

Most older people do not need any special legal support or protection. They are formed of diverse groups and clearly not all are vulnerable to abuses of one form or another. However, some older people are evidently more at risk than others because of ill-health, disability or dementia, or because of their dependency. They may require protection from physical or mental abuse and misuse of their money or property, and at some stage they may need help with making decisions. They may also require legal protection in respect of the provision of treatment or care, especially if the care arrangements involve them being deprived of their liberty.

Older people, especially those with dementia, may require support from diverse agencies, such as housing and social services, and are the main users of the NHS. Discrimination, victimisation or neglect of older people within the health and social care system raise important issues under human rights law, along with other domestic law or international law obligations. The Acts that are outlined in this chapter are aimed at protecting the basic human rights of people at risk, who share with all of us the right to live our lives as we choose.

People with intellectual disability may be subject to unfitness to plead proceedings in court due to the nature of their disability. In addition, people withintellectual disability in England and Wales are also subject to legislation such as the Mental Capacity Act 2005 and the Mental Health Act 1983 (as amended in 2007). This chapter explores issues with current fitness to practise proceedings for people with intellectual disability in relation to the Mental Capacity Act and the Mental Health Act, including the use of Sections 35 and 36.

In this chapter we summarise the key aspects of the mental health legislation (mainly the Mental Health Acts) applicable to people with intellectual disability and autism spectrum disorder as they apply to England and Wales, Scotland and Northern Ireland, as well as proposed new legislation or existing legislation not yet implemented.

This chapter provides an overview of the legislative frameworks that are relevant to the management of violence by persons with mental disorders in the United Kingdom. Three jurisdictions apply (England and Wales, Scotland and Northern Ireland). Individual frameworks and their variants are not discussed in detail; rather, substantial differences relevant to the management of violence are highlighted. Core principles guiding routine medical practice of ‘consent’ and ‘do no harm’ remain relevant in the management of violence, and legislation provides a framework when coercion may be necessary to manage an acute violent act, the immediate risk of further violence or the longer-term risk of violence. Pertinent legislation is discussed, including the Human Rights Act 1998, and mental health and mental capacity acts. Deprivation of Liberty Safeguards (DoLS), which are soon to be replaced by the Liberty Protection Safeguard Scheme (LPS), community treatment orders (CTOs) and review of the Mental Health Act are also discussed.

Singapore was one of the first movers in Asia to legally facilitate the recognition and use of advance directives in end-of-life decision-making. The Advance Medical Directive Act (AMDA) came into force in 1997 to emplace a legislative framework to enable individuals to exercise greater control over the medical care for their terminal illness. Notwithstanding extensive consultative and parliamentary deliberative processes, the Advance Medical Directive facility never really took hold in clinical care for the terminally ill in Singapore. Although uptake rates since 1997 have risen appreciably, rates of implementation are too low to have any measurable impact. This chapter therefore evaluates the merits and weaknesses of the Singapore AMDA framework. It then traces the evolution of anticipatory end-of-life decision-making policy from its original transactional mindset to the current, process-oriented and ‘communications’ model. The question then evaluated is whether advance directives (in statutory or other forms) have any continuing role in the current push towards more widespread advance care planning under the national ‘Living Matters’ programme spearheaded by the Singapore Agency for Integrated Care.

The current capacity tests in Hong Kong and Singapore for executing wills (including will substitutes) and appointing proxy decision-makers are derived from England. Due to an increasing rate of dementia and rapidly changing family dynamics, it has become particularly challenging to apply these tests in all these jurisdictions. Thus far, English judges who apply these tests have sought to give maximum scope to individual autonomy. For example, the courts have downplayed the requirement that the will be ‘rational on its face’. Outcome-based considerations such as whether a disposition meets the expectation of the deceased’s natural heirs are relevant only to demonstrate coherence of the decision-making process. However, there has been surprising little discussion as to whether judges in Hong Kong and Singapore adopt the same approach in applying these tests. This chapter examines relevant judicial decisions in these two jurisdictions and argues that whilst judges in Hong Kong tend to follow the English approach closely, judges in Singapore are more willing to take into account the values of family protection and concerns of improper influence in assessing capacity for testamentary and lifetime dispositions. The analysis concludes by proposing a legitimate role that family values may play in assessing testamentary capacity.

Disputes about care for dying patients are rife with emotions. They are also, unfortunately, quite common. In the event that a patient has not made and documented end-of-life decisions in advance and loses the ability to make those decisions, the baton passes to her surrogate decision-maker. When that surrogate elects to go against the tide of family (or professional medical) thinking, or some other conflict flares up, then the worst-case scenario arises. Disputes about the care of the patient move from the bedside to a more formal setting. The incapacitated patient’s very private dying process becomes the focus of an institutional dispute resolution procedure. All of the patient’s intimate struggles – the details of her unfortunate medical plight and perhaps her family’s conflict – become public and open to discussion and debate.

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.

Key Learning Points

1. 1. Professional regulation and legal framework closely interact in providing care of patients in intensive care.

2. 2. Legal and ethical issues closely interplay with common law, statute and public law.

3. 3. The Mental Capacity Act and safeguarding process have introduced a robust decision-making process.

4. 4. Clinicians have to be aware of the legal framework whilst making treatment refusal and life-sustaining treatment decisions.

5. 5. Patients with capacity can refuse or influence any treatment, but cannot demand any specific treatment.

Persons with special needs are in an extremely vulnerable position where they are potentially subject to financial abuse by rogues. Unfortunately, policy makers and scholars have not given this problem sufficient consideration. Drawing from the Singapore experience, this chapter explores the financial planning mechanisms available to persons with special needs which currently exist through legislation and various government and non-profit initiatives. It then considers several case studies of financial abuse of persons with special needs to expose the potential systemic weaknesses in the current regime. The aim of the chapter is to provoke a conversation on how societies can do better by enacting laws and implementing schemes to prevent financial abuse of persons with special needs.

This chapter examines adult guardianship and powers of attorney in England and Wales today. Section I considers the origin of modern adult guardianship law in Roman law and traces its development in English common law through to the current legal and institutional infrastructure of mental capacity jurisdiction. It then introduces the procedures of appointing a deputy, and evaluates the safeguards provided by the Office of the Public Guardian. Section II focuses on the policy considerations underpinning the legislation on enduring and lasting powers of attorney, the development of policy and legislation over the past 35 years, and potential developments in the foreseeable future. The author also compares deputyship with attorneyship, and explains the advantages of the former over lasting powers of attorney.