Mental capacity in England and Wales

rdf:langString Mental capacity in England and Wales

rdf:langString Lord Scarman

rdf:langString Lord Fraser

rdf:langString As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.

rdf:langString "provided he is satisfied in the following criteria: *That the girl will understand his advice; *That he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice; *That she is very likely to continue having sexual intercourse with or without contraceptive treatment; *That unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer; *That her best interests require him to give her contraceptive advice, treatment or both without the parental consent."

rdf:langString In the Law of England and Wales, best interest decisions are decisions made on behalf of people who do not have mental capacity to make them for themselves at the time the decision needs to be taken. Someone who has the capacity to make a decision is said to be "capacitous". Since 2007, there has been a dedicated court with jurisdiction over mental capacity: the Court of Protection, although it mostly deals with adults. Most applications to make decisions on behalf of a child are still dealt with by the Family Court. In a medical emergency, the patient may be obviously incapable of making a decision because they are unconscious and treatment cannot be put off. In that case an attempt to give treatment will be lawful if the person giving the treatment believes it is in the patient's best interest. Where there is doubt about someone's capacity to make a decision but their capacity may improve later, the decision should be deferred if possible. If their capacity is unlikely to improve in future—such as people who have relatively severe dementia, certain kinds of brain injury, or a serious learning disability—a mental capacity assessment should be conducted. Mental capacity assessments are specific to each decision, so if a different decision is needed, the person's capacity may need to be assessed again. For example, a person may be able to make a decision about their care or treatment but lack capacity to make a financial decision. People who experience delirium or altered states of consciousness, e.g. during a urinary tract infection, can temporarily lose capacity. Outside an emergency situation, the decision maker should normally take reasonable steps to consult other relevant people (such as the person's next of kin, other relatives, friends or associates) before making a decision on their behalf. If the decision is complex or fraught and will have reasonably serious consequences, an independent advocate should be appointed.