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Legal aspects of the case scenario
  1. Bridgit Dimond, Professor
  1. Emeritus Professor, University of Glamorgan

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It is a principle of law, enshrined in the Mental Capacity Act 2005; MCA), that the wishes of the mentally competent patient concerning refusal or acceptance of medical treatment should prevail. If that patient refuses treatment, then that is his/ her legal right, even if the refusal is contrary to what the medical team believes is in the patient’s best interests. However, during the final stages of a patient’s life, a patient’s mental condition may vary; at one moment he/she may be mentally competent, at another mentally incompetent.

How is mental capacity defined? There is now a legal presumption that a person has the requisite mental capacity to make decisions, unless evidence exists to the contrary. The MCA provides a statutory definition of mental capacity. It requires two questions to be answered: is the person suffering from an impairment of, or a disturbance in, the functioning of the mind or brain? If yes, does the impairment or disturbance (whether permanent or temporary) render the person unable to make decisions? The MCA provides a four-stage statutory definition of being able to make decisions. It must be decided whether the person possesses the capacity to: understand the information …

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