Mental Capacity Act,Anorexia Nervosa and the Choice Between Life‐Prolonging Treatment and Palliative Care: A NHS Foundation Trust v Ms X

The Court of Protection decided in A NHS Foundation Trust v Ms X that an anorexia nervosa patient lacked the capacity to refuse treatment for her eating disorder, but that it was not in her best‐interests to be subject to force‐feeding to prolong her life. The Court, vindicating previous judgments in similar cases, considered that the eating disorder rendered the patient incapable of deciding on nutrition and, therefore, that she lacked the capacity to refuse treatment for anorexia nervosa. This paper questions the narrow way in which the patient's decision was characterised by the Court in this and previous cases, which led to an application of the Mental Capacity Act 2005 that is incompatible with the UN Convention on the Rights of Persons with Disabilities because, based on a diagnosis only, anorexia nervosa patients were denied the right to decide where the balance lies between quality and duration of their own lives.     

The Rise of Statutory Wills and the Limits of Best Interests Decision‐Making in Inheritance

This article addresses ‘statutory wills’ executed under the Mental Capacity Act 2005 (MCA) for persons with impaired mental capacity. The article provides an overview of the historical development of statutory wills, before exploring their rising contemporary significance. It considers the shift from the previous ‘hypothetical substituted judgment’ test to the contemporary ‘best interests’ orientation of the MCA. The article assesses the problems that the best interests approach raises in this area, and its (in)compatibility with the right to equal recognition before the law under the UN Convention on the Rights of Persons with Disabilities, arguing that the pervasive reach of best interests in contemporary mental capacity law requires reconsideration. The paper concludes by suggesting that a more limited framing of the power to execute statutory wills is required in order to appropriately balance the rights of individuals with disabilities with practical considerations around the distribution of assets on death.     

From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions About Their Medical Treatment

In 1989, the House of Lords first derived a ‘best interests’ test for the medical treatment of adults who lack capacity from the doctrine of necessity and, now codified, the test continues to apply today. The Mental Capacity Act 2005 sets out a non‐exhaustive checklist of relevant considerations, but it gives no particular priority to the patient's wishes. There is also no formal expectation that the patient will participate directly in any court proceedings in which her best interests are to be determined. This article will consider the advantages and disadvantages of providing additional guidance to decision‐makers in order to help them navigate both taking seriously the wishes of people who lack capacity and, at the same time, not abandoning patients who need help and support. More specifically, this article advocates formalising current best practice in the Court of Protection through the introduction of a series of rebuttable presumptions, or starting points.     

The Law and Incapacity Determinations: A Conflict of Governance?

This article will consider the highly charged questions raised by two major sets of law reforms in England and Wales, the Mental Capacity Act 2005 and the Mental Health Act 2007, which, although applying to closely related clinical populations, proceeded along entirely separate legislative paths. By justifying its proposals for reform of mental health legislation on the grounds of 'risk', the Government failed to take into account the implications of enforced treatment on patients who may retain decision-making capacity.