Case Note: N v Romania (Application No 59152/08, Decision of 28 November 2017

A case note discussing N v Romania (Application No 59152/08, Decision of 28 November 2017)

With and Without 'Best Interests': the Mental Capacity Act 2005, the Adults With Incapacity (Scotland) Act 2000 and constructing decisions

This article compares the bases upon which actions are taken or decisions are made in relation to those considered to lack the material capacity in the Mental Capacity Act 2005 (‘MCA’) and the Adults with Incapacity (Scotland) Act 2000 (‘AWI’). Through a study of (1) the statutory provisions; and (2) the case-law decided under the two statutes, it addresses the question of whether the use of the term ‘best interests’ in the MCA and its – deliberate – absence from the AWI makes a material difference when comparing the two Acts. This question is of considerable importance when examining the compatibility of these legislative regimes in the United Kingdom with the Convention on the Rights of Persons with Disabilities (‘CRPD’).The article is written by two practising lawyers, one a Scottish solicitor, and one an English barrister. Each has sought to cast a critical eye over the legislative framework on the other side of the border between their two jurisdictions as well as over the framework (and jurisprudence) in their own jurisdiction. Its comparative analysis is not one that has previously been attempted; it shows that both jurisdictions are on their own journeys, although not ones with quite the direction that might be anticipated from a plain reading of the respective statutes

Editorial

This issue's editors discuss the debate which has emerged between two of the journal's contributors and the President of the Victorian Mental Health Tribunal, and take us through the articles which follow the exchange of opinion

Reasons for endorsing or rejecting ‘self-binding directives’ in bipolar disorder: a qualitative study of survey responses from UK service users

Summary Background Self-binding directives instruct clinicians to overrule treatment refusal during future severe episodes of illness. These directives are promoted as having potential to increase autonomy for individuals with severe episodic mental illness. Although lived experience is central to their creation, service users’ views on self-binding directives have not been investigated substantially. This study aimed to explore whether reasons for endorsement, ambivalence, or rejection given by service users with bipolar disorder can address concerns regarding self-binding directives, decision-making capacity, and human rights. Methods This study used qualitative data from an internet-based survey distributed to the mailing list of the UK charity Bipolar UK, which contained multiple closed and open questions on advance decision-making in bipolar disorder. Quantitative analysis of a closed question about self-binding directives had already demonstrated endorsement amongst a very high proportion of participants with bipolar disorder who completed the survey. We conducted thematic analysis of responses from those participants who answered a subsequent open question about reasons for their view. Research was co-produced within a multi-disciplinary team, with clinical, legal, and ethical expertise, and lived experience of bipolar disorder. Ideas and methodologies associated with all these areas of expertise were used in the analysis of these reasons and to gain insight into the thoughts of individuals with bipolar disorder about self-binding directives and associated issues. Findings Between Oct 23 and Dec 5, 2017, 932 individuals with a self-reported clinical diagnosis of bipolar disorder completed the internet survey, with 565 (154 men; 400 women; 11 transgender or other) providing free text answers to the open question. A large majority of respondents endorsed self-binding directives, nearly all describing a determinate shift to types of distorted thinking and decision-making when unwell as their key justification. Responses indicating ambivalence were dominated by logistical concerns about the drafting and implementation of self-binding directives, while those who rejected self-binding directives also cited logistical concerns, validity of their thinking when unwell, and potential contravention of human rights. Interpretation This study is, to our knowledge, the first large study of reasons why mental health service users might endorse or reject the use of self-binding directives. The findings provide empirical support for introducing self-binding directives into mental health advance decision-making practice and policy and may help to address enduring ethical concerns surrounding possible implementation of the directive while a person retains decision-making capacity. The opinions expressed here in responses given by multiple service users with bipolar disorder challenge a prominent view within international disability rights debates that involuntary treatment and recognition of impaired mental capacity constitute inherent human rights violations. Funding The Wellcome Trus

Advance Choices, and Medical Decision Making in Intensive Care Situations : Paper by the Law Society of Scotland

[We offer a basic formulation (previously lacking) of the doctor-patient relationship, and resulting obligations, responsibilities and potential liabilities, in any situation where medical decision-making cannot proceed at all, or sufficiently quickly, in accordance with the competent and informed consent of the patient. The formulation is derived from existing principles in Scots law and some similar legal systems. Adequate clarity and certainty are however at present lacking in Scots law. It is urgently necessary to provide it, in the interests of doctors, patients and all others who might be concerned. In the matter of withholding or withdrawing life-sustaining treatment, we have considered, commented upon and evaluated the 1995 proposals by Scottish Law Commission (which were never implemented), together with such case law as has developed, as a basis for formulating legislative provision that would provide the clarity, certainty and protections for medical practitioners acting properly, that is at present lacking in Scotland. Our recommendations include suggestions as to how both topics may be taken forward to the drafting, introduction and implementation of legislation, including suggestions as to further research, consultation, and – following upon the introduction of legislation – a coordinated approach to all aspects of its successful implementation.