This chapter begins with an overview of the Mental Capacity Act 2005 (MCA 2005) followed by a discussion of the principles of the MCA 2005. It then explains the meaning of incapacity and best interests as defined in the MCA 2005,s and considers the provisions for advance decisions regarding treatment.
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4. The Mental Capacity Act 2005
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6. Incapacity II: Children
This chapter discusses children’s medical treatment. It looks at the limits of parental decision-making, and cases in which the courts have overruled parental wishes in order to protect the child’s best interests. Courts may also be asked to resolve disputes between parents, or to make decisions about particularly controversial treatments. If a mature minor is Gillick-competent, she can give consent to medical treatment, but her right to refuse life-saving treatment may be more limited.
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Cowan v Scargill [1985] Ch 270, Chancery Division
Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Cowan v Scargill [1985] Ch 270, Chancery Division. The document also includes supporting commentary from author Derek Whayman.
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Cowan v Scargill [1985] Ch 270, Chancery Division
Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Cowan v Scargill [1985] Ch 270, Chancery Division. The document also includes supporting commentary from author Derek Whayman.
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5. Children and Medicine
This chapter explores how the law deals with cases involving children receiving medical care. It considers the circumstances in which children have capacity to consent to treatment. It explores the case law in cases where there is disagreement between parents and children over health care. It also looks at difficult cases where parents and doctors disagree on how to treat very sick children. The way the courts interpret the best interests of the child are examined. The chapter also explores the ethical and legal issues around the vaccination of children. The broader issue of whether there should be limits on the rights of children and the extent to which parents can determine what is in the best interests of the child are examined.
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17. Withholding and Withdrawing Medical Treatment from Adults
A. M. Farrell and E. S. Dove
There are circumstances in which both law and ethics are engaged towards the end of an adult’s life. Among them are the conditions in which further medical treatment would be futile. Such treatment includes life-sustaining treatment provided by a ventilator, often necessitated following a traumatic brain injury which has placed them in a ‘prolonged disorder of consciousness’ from which there is no chance of recovery. Here an advance directive may not have been made, and it falls to the court to determine whether it is in the patient’s best interests to withdraw treatment. In this chapter, we consider the medical circumstances which may lead to that judicial consideration, along with the criteria on which courts will reach a decision on the legality of treatment withdrawal. We conclude that where there is disagreement with the insensate patient’s family members, treatment may be withdrawn where it is in that patient’s judicially assessed ‘best interests’, as long as there has been compliance with mental capacity legislation. In such circumstances, however, we also argue that treatment withdrawal is indistinguishable from euthanasia.
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32. Youth justice in an age of uncertainty: principles, performance, and prospects
Lesley McAra
This chapter explores the principles, operational functioning, and impacts of the institutions which have evolved across the four nations in the United Kingdom to deal with children and young people who come into conflict with the law. A key aim of the chapter is to assess the social, political, and cultural conditions necessary to sustain more progressive approaches to youth justice, predicated on the best interests of the child. The chapter begins with a critique of the evolving normative framings of youth justice, both in terms of the international standards to which UK systems avowedly adhere and the shifting conceptual underpinnings of research and policy debates on young people who come into conflict with the law. It then explores the recent history of policy transformation across the four UK nations, a story of both divergent and convergent dynamics. Following this, the chapter considers the disjuncture which research has found between the ambition osentencf policy and the cultural practices of institutions which make up the youth justice system, highlighting a persistent tendency to recycle a client group of young people who are mostly poor, known to systems from an early age and disproportionately from Black and Minoritized Ethnic groups. The final part of the chapter offers some reflections on the futures of youth justice in a time of multiple and intersecting crises, and what needs to be done now to nurture and support children and young people: a holistic and generative approach to justice.
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14. The Welfare Principle
N V Lowe, G Douglas, E Hitchings, and R Taylor
This chapter is concerned with the foundational principle of child law: the welfare principle. It discusses the contested meaning of ‘welfare’ in s 1 of the Children Act 1989, particularly through evaluation of the terms outlined in the welfare checklist. This includes consideration of matters such as the weight to be given to children’s wishes and feelings. The meaning of ‘paramountcy’ is then discussed, including assessment of the impact of the Human Rights Act 1998 and an explanation of the circumstances in which welfare is not paramount. The chapter then turns to the impact of the presumption of parental involvement, ‘no order’ principle and the need to avoid undue delay on the assessment of a child’s welfare.
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5. Deprivation of Liberty under the Mental Capacity Act 2005
This chapter discusses amendments to the Mental Capacity Act (MCA 2005), introduced in the Mental Health Act 2007, which are generally known as the Deprivation of Liberty Safeguards (DOLS). It begins with an overview of the DOLS and then considers the triggering issue for the applicability of the DOLS, namely whether there is a deprivation of liberty. The chapter outlines the six requirements for application of the DOLS: (i) age requirement; (ii) mental health requirement; (iii) mental capacity requirement; (iv) best interests requirement; (v) no refusals requirement; and (vi) eligibility.
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9. Children and Consent to Medical Treatment
A. M. Farrell and E. S. Dove
This chapter examines the law involving capacity to consent to medical treatment on the part of children and young people. An overview is first provided of key legislation and the role of the courts in the area. Thereafter, the concept of Gillick competence is then examined. Post-Gillick case law is explored in select areas, including refusals of medical treatment, objections to treatment due to religious beliefs, other welfare considerations, gender identity, and the care of critically ill young children. The final section briefly reflects on the role of human rights in promoting the autonomy of children and young people in decision-making about their own health care and how this has been interpreted by the courts.
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16. Medical Futility
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter begins with a discussion of the concept of medical futility. It examines cases dealing with selective non-treatment of the newborn and selective non-treatment in infancy. The chapter argues that while concepts such as ‘futility’ and ‘best interests’ have strong normative appeal, the search for objectivity in their application may itself be a futile exercise. The reality is that decision-makers are involved in a value-laden process, and this is no less true when the decision is taken in a court rather than at the patient’s bedside. The chapter then considers the issue of end of life, examining cases of patients in a permanent vegetative state and those in a minimally conscious state.
