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08th June 2016

Past and Present

Another recent case in the Court of Protection has provided some additional views and guidance on a particular aspect of mental capacity law – namely what is in someone’s best interests. The case was a very distressing one. A woman expecting a baby was subject to a serious assault by her partner resulting in brain damage and a loss of capacity to make crucial decisions. There was a decision to be made about termination of the pregnancy. Before her terrible injuries the woman had indicated she was seeking an abortion. However since being in hospital her views had fluctuated. The judge in this case gave greatest weight to her previous views, partly because of the loss of capacity, but also because everything she had said and done before her injuries suggested she wished to terminate the pregnancy. The case is referred to as An NHS Trust v CS (Termination of Pregnancy) 2016.

Steps to decide

Let’s go back to what the Mental Capacity Act says about these and other situations where someone who lacks the capacity to make a decision faces a decision to be made. Firstly the person needs to fulfil the mental capacity test – do they lack capacity to make that particular decision? Now at this point the principles of the Act suggest we should help someone get capacity to make the decision – so for example can we wait until the person regains capacity or is the decision urgent? You’ll see guidance in the QCS policy’s, procedures and forms that reminds you of this important step. Clearly in this case there wasn’t time to wait.

Previous wishes

The next step is to decide what decision would be in the person’s best interest. There isn’t a definition of best interest in the Mental Capacity Act – we need to use the checklist in Section 4 of the Act. Here we get onto past and present wishes. Just because someone lacks capacity doesn’t mean we don’t listen to their views now, but we need to balance that against the kinds of things someone was saying and doing before they lacked capacity. In this case the woman had had a previous termination, when she was aware of the potential physical and emotional effects. Her family also gave information in support of this decision. For example they said she had made an initial appointment regarding consultation about an abortion.

Now this was a particularly distressing case referring to a serious medical procedure, so complex it needed to be decided in the Court of Protection. However you can apply the principles to less difficult decisions suggest as whether to have a flu jab. Listen to what the person is saying now, but consider their views in the past.

David Beckingham – QCS Expert  Mental Health  Contributor

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