Mental capacity

Older people, particularly those lacking capacity, are often subject to financial abuse. While such abuse is frequently committed by strangers, in certain circumstances the perpetrators may be members of an older person’s own family. Such abuse is often hard to identify and even more difficult to prove. The research described here was part of a wider project exploring the financial abuse of adults of all ages who lack capacity, examining the role of various agencies in preventing or dealing with it. It used a mix of methods including the analysis of national and local statistics, interviews with professional experts in the law, banking and health and social work, together with a local area case study. This article presents an analysis of Court of Protection cases dealing largely with applications to revoke lasting powers of attorney (LPA) often where financial misbehaviour is implicated. In particular it focuses on the role of intra-family dynamics showing how family disputation can play a significant part in relation to the financial abuse that takes place.

This paper concerns the application of the best interests standard introduced by section 4 of the Mental Capacity Act 2005 (MCA) in the context of an application to the Court of Protection for an order, from the funds of a woman lacking capacity, for maintenance payments in favour of her daughter. The paper identifies useful general insights into the operation of the MCA best interests standard from the discussion in this context

The PACT (Preferences and Advance decisions for Crisis and Treatment) is a fillable template for advance decision making in fluctuating mental health conditions. For more details on how it was produced see preprint of ‘Stephenson, L.*, Gergel, T.*, Ruck Keene, A., Rifkin, L., & Owen, G. (2020). The PACT advance decision-making template: Preparing for mental health act reforms with co-production, focus groups and consultation. International Journal of Law and Psychiatry (https://www.researchgate.net/publication/342305448_The_PACT_advance_decision-making_template_preparing_for_Mental_Health_Act_reforms_with_co-production_focus_groups_and_consultation)

Human rights have recently impacted on current conceptualisations of the rights and obligations owed to individuals with impairments, culminating in the UN Convention for the Rights of Persons with Disabilities. Particularly significant is Article 12, where interpretations have heralded a " will and preferences " paradigm which rejects substituted decision-making mechanisms, even in situations where an individual should make personally harmful or unwise decisions about their treatment, care, or relationships. This paper explores problems with " strict " and " flexible " interpretations of Article 12, focusing specifically on safeguarding issues in cases of relational abuse, exploitation, and coercion. Drawing analogies with feminist arguments opposing violence against women in the domestic sphere, I challenge the private/public and individualistic account of autonomy which is implicit in interpretations of the " will and preferences " paradigm, and suggest that proponents of Article 12 should consider the possible justifiability of expanded protectionist measures in cases of abuse involving individuals with impairments.

In recent human rights and legal instruments, individuals with impairments are increasingly recognised as agents who are worthy of respect for their inherent dignity and capacity to make autonomous decisions regarding treatment and care provisions. These legal developments could be understood using Stephen Darwall's normative framework of the second person standpoint. However, this paper draws upon phenomena – both in legal developments and recent court cases – to illustrate theoretical difficulties with the contractualist underpinnings of Darwall's account if applied to questions of what is owed to individuals with disabilities. I argue that, under Darwall's framework, whether the threshold for second-personal competence has been met will determine whether respect or rational care is owed to them. This fact distorts our understanding of what we owe to persons with mental impairments—in part because it limits respect to relations that are symmetrical and reciprocal. In light of these challenges the paper offers an account of hermeneutic competency, which can be applied to non-reciprocal and asymmetrical relationships. This alternative account will be of practical import to judicial determinations of best interests under the Mental Capacity Act 2005 in England and Wales. It will also be of broader theoretical interest to any legal system that deals with people with mental disabilities. In recent years human rights and statutory instruments have extended the right of autonomy to disabled individuals – a group which has been marginalised historically both in liberal theory and politics. The UN Convention of the Rights of Persons with Disabilities (CRPD) recognises the equal moral and legal standing of

In this article, I argue that autonomy has to be conceived substantively in order to serve as the qualifying condition for receiving the full set of individual liberal rights. I show that the common distinction between content-neutral and substantive accounts of autonomy is riddled with confusion and ambiguities, and provide a clear alternative taxonomy. At least insofar as we are concerned with liberal settings, the real question is whether or not the value(s) and norm(s) implied by an account of autonomy are acceptable to reasonable people, not whether these accounts are content-neutral, procedural or input-focused. Finally, I demonstrate how substantive constraints are compatible with, or even implied in, the notion of autonomy at play in (Rawls's) political liberalism. Overall, I present a normative reconstruction, clarification, and internal critique of liberalism, drawing on case law and statutes from England and Wales.

This paper analyzes the recent reform regarding the legal capacity of persons with disabilities in Peru. It provides a domestic legal and judicial context in which the reform was adopted. Following this, the paper aims to analyze the reform’s conformity with article 12 of the Convention on the rights of persons with disabilities, noting that the current regulation is only partially CRPD compliant. The current design of judicially designated supporters can be understood as valid under specific interpretations of Article 12, while the design of safeguards does not comply with such standard. The paper addresses the impact of legal capacity reform in traditional private law theory of the juridical act. Currently, the Peruvian system does not provide clear or accurate standards to respond to this problem. The paper shines a light on the need to rethink multiple concepts of private law in order to make legal capacity reform fully operational.

The subject of consent to medical treatment is wrapped around certain legal and ethical principles, thus becoming one of the most controversial issues in recent times. In this paper, Miss Gladys Emmanuel explores the Mental Capacity Act 2005 of England and Wales and discusses the major advanced decision mechanisms as provided by the Act.

In this research, the Scientific Literacy Assessment (SLA), developed by Fives, Huebner, Bırnbaum & Nicolich (2014) for secondary school students was adapted to Turkish language. This instrument has two scales in it. The first is the Demonstrated Scientific Literacy (SL-D) test with a one-factor structure; the second is the Scientific Literacy Motivation and Beliefs (SL-MB) scale with a three-factor structure. Following the linguistic equivalence study, the scale was implemented to 500 seventh grade students who were selected by random stratified sampling method from the central provinces of Ankara for validity and reliability study. Structural validity of both scales was examined using confirmatory factor analysis (CFA) technique. Analyses for SL-D showed that questions 10, 11, 15, and 16 in the test were not valid indicators of this structure. The necessary corrections were made for these questions and the new version was applied to 823 different students who were selected by random stratified sampling method from the central provinces of Ankara. As a result of the CFA analyses, the goodness of fit criterion showed that the one-factor structure of the test was acceptable, but the question 16 is not a valid indicator of SL-D structure. As a result of interviews with field experts, the 16th question was removed from the test. The reliability coefficient of the test was found to be 0.66 As a result of the CFA analyses performed for SL-MB, the goodness-of-fit criterion indicates that the scale's structure is acceptable. The Cronbach's Alpha internal consistency coefficient for the SL-MB was found to be 0.70 for the subscale of subjective task value, 0.70 for scientific literacy self-efficacy and 0.86 for personal epistemology for science. The Cronbach's alpha internal consistency coefficient for the scale was 0.78. based on the findings of the research, it is decided that the Turkish-adapted form of the SLA is a valid and reliable measurement tool and it can be used to measure the scientific literacy achievement to the students of the specified grade.
Keywords: Scientific literacy, Subjective Task Value, Scientific Literacy Self-Efficacy, Personal Epistemology for Science.

The purpose of this article is to examine the concept of fluctuating capacity and its intricacies, identifying the issues that can inform the development of provisions in this area. The paper seeks to challenge the current binary approach applied in this context by showing that the lack of legal principles governing the concept of fluctuating capacity renders people in this category vulnerable to being denied autonomy. It proposes a conceptual definition for the determination of fluctuating capacity and suggests the use of self-binding directives as a measure to overcome the setbacks of the binary approach. The paper also proposes expanding the application of self-binding directives to include a wider scope of disorders with episodic features, adding to the debate on the autonomy and rights of people with bipolar disorder. The ethical justification for adopting self-binding directives in this context is the safeguarding of autonomy when individuals prefer to extend their autonomy beyond moments of incapacity.

Patients have a right to autonomy that encompasses making medical decisions that others consider ‘bad’. The ambits of this right in law and clinical practice are explored in this article, which describes an expansion of welfare protections across different aspects of medical law and explores their justifications and implications. In England and Wales, the Mental Capacity Act 2005 sets out protections for those who fall within its definition of incapacity. Those who retain capacity are ostensibly free to make decisions others consider unwise. But the decisions of those with borderline capacity; those whose decisions conflict with the public interest in protecting the patient from harm; and those considered ‘vulnerable’ are, in circumstances explored in this article, susceptible to override. The article explores the effects of these developments on the relationship between patients’ autonomy rights and clinicians’ responsibilities.

Human rights have recently impacted on current conceptualisations of the rights and obligations owed to individuals with impairments, culminating in the UN Convention for the Rights of Persons with Disabilities. Particularly significant is Article 12, where interpretations have heralded a “will and preferences” paradigm which rejects substituted decision-making mechanisms, even in situations where an individual should make personally harmful or unwise decisions about their treatment, care, or relationships. This paper explores problems with “strict” and “flexible” interpretations of Article 12, focusing specifically on safeguarding issues in cases of relational abuse, exploitation, and coercion. Drawing analogies with feminist arguments opposing violence against women in the domestic sphere, I challenge the private/public and individualistic account of autonomy which is implicit in interpretations of the “will and preferences” paradigm, and suggest that proponents of Article 12 shou...

Determining the best interests of incapacitated patients has been observed to be an opaque area of the law, and this is no less so in decisions about the (non-)treatment of patients in the minimally conscious state. A systematic examination of the way best interests are used in judgments relating to this population suggests that narratives involving the character of the patient frequently form an important plank of judicial reasoning. Since insights into the concept of best interests may be gained by an engagement with the philosophy of well-being, I identify the court's character-based approach with perfectionist theories of well-being. These use human nature to furnish an objective list of abilities needed for human flourishing. Guided by the Mental Capacity Act (MCA), this list becomes focused primarily on autonomy. Incapacitated patients are assumed to have wishes, but to lack agency. Judges search for these wishes in narratives about the patient and supply the means to exercise these wishes. This analysis suggests three concerns about the court's approach: first, by placing so great a weight on autonomy, the law offers an impoverished account of human nature; secondly, adversarial law encourages partial determinations of character, and this raises concerns about whether the courts are equipped to explore the complexities of character narratives; and, thirdly, experimental psychology indicates character is not as predictable as an assessment under MCA requires. While character narratives may unburden decision-makers, this analysis suggests the limits of autonomy may have been exceeded in this area of the law.

To evaluate treatment decision-making capacity (DMC) to consent to psychiatric treatment in involuntarily committed patients and to further investigate possible associations with clinical and socio-demographic characteristics of patients.

131 involuntarily hospitalised patients were recruited in three university hospitals. Mental capacity to consent to treatment was measured with the MacArthur Competence Assessment Tool for Treatment (MacCAT-T); psychiatric symptoms severity (Brief Psychiatric Rating Scale, BPRS-E) and cognitive functioning (Mini Mental State Examination, MMSE) were also assessed.

Mental capacity ratings for the 131 involuntarily hospitalised patients showed that patients affected by bipolar disorders (BD) scored generally better than those affected by schizophrenia spectrum disorders (SSD) in MacCAT-T appreciation (p < 0.05) and reasoning (p < 0.01). Positive symptoms were associated with poorer capacity to appreciate (r = −0.24; p < 0.01) and reason (r = −0.27; p < 0.01) about one's own treatment. Negative symptoms were associated with poorer understanding of treatment (r = −0.23; p < 0.01). Poorer cognitive functioning, as measured by MMSE, negatively affected MacCAT-T understanding in patients affected by SSD, but not in those affected by BD (SSD r = 0.37; p < 0.01; BD r = −0.01; p = 0.9). Poorer MacCAT-T reasoning was associated with more manic symptoms in the BD group of patients but not in the SSD group (BD r = −0.32; p < 0.05; SSD r = 0.03; p = 0.8). Twenty-two per cent (n = 29) of the 131 recruited patients showed high treatment DMC as defined by having scored higher than 75% of understanding, appreciating and reasoning MacCAT-T subscales maximum sores and 2 at expressing a choice. The remaining involuntarily hospitalised patients where considered to have low treatment DMC. Chi-squared disclosed that 32% of BD patients had high treatment DMC compared with 9% of SSD patients (p < 0.001).

Treatment DMC can be routinely assessed in non-consensual psychiatric settings by the MacCAT-T, as is the case of other clinical variables. Such approach can lead to the identification of patients with high treatment DMC, thus drawing attention to possible dichotomy between legal and clinical status.