Foreword from the Series Editor |
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xiii | |
About the authors |
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xiv | |
Preface to the 2015 edition |
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xv | |
1 Background to the Mental Capacity Act 2005 |
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1 | (4) |
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1 | (1) |
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Key issues to be resolved |
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1 | (1) |
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The concept of mental capacity |
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1 | (1) |
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The work of the Law Commission |
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1 | (2) |
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3 | (1) |
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3 | (1) |
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The Mental Incapacity Bill |
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3 | (2) |
2 The key features of the Mental Capacity Act 2005 |
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5 | (8) |
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5 | (1) |
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5 | (1) |
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Mental incapacity defined |
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6 | (1) |
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6 | (1) |
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Protection for those making decisions |
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7 | (1) |
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Lasting Powers of Attorney |
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8 | (1) |
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Deputies and declarations |
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8 | (1) |
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8 | (1) |
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Independent Mental Capacity Advocates (IMCAs) |
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9 | (1) |
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The Court of Protection and the Public Guardian |
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9 | (1) |
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10 | (3) |
3 The Code of Practice (sections 42-43) |
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13 | (5) |
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13 | (1) |
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What does the Code of Practice cover? |
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13 | (1) |
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To whom does the Code of Practice apply? |
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14 | (2) |
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What is the status and effect of the Code? |
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16 | (2) |
4 Principles (section 1.) |
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18 | (6) |
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18 | (1) |
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18 | (1) |
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A person must be assumed to have capacity |
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19 | (1) |
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Practicable steps to help the person make a decision |
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19 | (2) |
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21 | (1) |
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21 | (1) |
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Less restrictive approach |
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21 | (3) |
5 What is lack of capacity? (sections 2-3) |
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24 | (7) |
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24 | (1) |
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25 | (1) |
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The section 3 'functional' test |
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26 | (1) |
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Situations requiring the capacity test |
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27 | (1) |
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What is a reasonable belief that someone lacks capacity? |
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27 | (1) |
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A checklist for assessing capacity |
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28 | (2) |
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Recording by professionals |
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30 | (1) |
6 Best interests (section 4) |
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31 | (7) |
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31 | (1) |
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31 | (1) |
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The principle of equal consideration |
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31 | (1) |
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All relevant circumstances |
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31 | (1) |
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31 | (2) |
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Participation of the individual |
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33 | (1) |
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Life-sustaining treatment |
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33 | (1) |
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Wishes, feelings, beliefs and values |
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34 | (1) |
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The views of other people |
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34 | (1) |
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35 | (3) |
7 Protection for those making decisions (sections 5-8) |
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38 | (6) |
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38 | (1) |
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38 | (1) |
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39 | (1) |
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40 | (1) |
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What amounts to deprivation of liberty? |
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41 | (1) |
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Financial implications of section 5 decisions |
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41 | (2) |
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Key checks for decision-makers |
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43 | (1) |
8 Lasting Powers of Attorney (sections 9-14 and 22-23) |
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44 | (7) |
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44 | (1) |
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What is a Lasting Power of Attorney? |
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44 | (1) |
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45 | (1) |
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45 | (1) |
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To what controls are attorneys and LPAs subject? |
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46 | (1) |
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How might an LPA be limited in scope? |
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47 | (1) |
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48 | (1) |
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The role and duties of an attorney |
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48 | (1) |
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Advance decisions and Lasting Powers of Attorney |
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49 | (1) |
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Does the law limit the powers of an attorney? |
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49 | (1) |
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The role and powers of the Court of Protection |
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49 | (1) |
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Transitional arrangements for Enduring Powers of Attorney (EPAs) |
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50 | (1) |
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Key points and questions relating to Lasting Powers of Attorney |
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51 | (1) |
9 Deputies and declarations (sections 15-21) |
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51 | (9) |
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51 | (1) |
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The power to make declarations |
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51 | (2) |
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The power to make decisions |
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53 | (1) |
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The approach of the court |
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54 | (1) |
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Personal welfare decisions |
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55 | (1) |
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Property and affairs decisions |
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55 | (1) |
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The power to appoint a deputy |
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56 | (1) |
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When might a deputy be appointed? |
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57 | (1) |
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What restrictions affect a deputy's powers? |
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57 | (1) |
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The responsibilities and duties of a deputy |
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58 | (1) |
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Key points and questions relating to the Court of Protection and deputies |
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59 | (1) |
10 Advance decisions to refuse treatment (sections 24-26) |
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60 | (8) |
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60 | (1) |
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60 | (1) |
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An advance decision must be valid |
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61 | (1) |
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An advance decision must be applicable |
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61 | (1) |
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What are the formal requirements? |
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61 | (2) |
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The effect of a valid and applicable advance decision |
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63 | (1) |
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Protection for healthcare professionals |
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63 | (1) |
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64 | (1) |
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Advance decisions refusing treatment for mental disorder |
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65 | (1) |
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Advance decisions and Lasting Powers of Attorney |
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66 | (1) |
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Conscientious objections by healthcare professionals |
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66 | (1) |
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Key points and questions relating to advance decisions |
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66 | (2) |
11 Independent Mental Capacity Advocates (IMCAs) (sections 35-41) |
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68 | (8) |
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68 | (1) |
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68 | (1) |
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69 | (1) |
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70 | (3) |
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Exceptions: when an IMCA will not be needed |
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73 | (1) |
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Other circumstances when an IMCA could be involved |
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73 | (1) |
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73 | (1) |
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Training and procedures for staff on the role of the IMCA |
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74 | (2) |
12 The Court of Protection and the Public Guardian (sections 45-61) |
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76 | (7) |
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76 | (1) |
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77 | (1) |
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When might an application be made? |
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77 | (1) |
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Who can apply to the Court of Protection? |
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78 | (1) |
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Court of Protection Visitors |
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79 | (1) |
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80 | (1) |
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How will the Public Guardian operate in practice? |
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80 | (3) |
13 Other issues |
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83 | (3) |
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Ill-treatment and neglect (section 44) |
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83 | (1) |
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84 | (1) |
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84 | (2) |
14 Research |
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86 | (3) |
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86 | (1) |
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What research is affected by the Act? |
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86 | (1) |
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The requirements for approval |
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86 | (1) |
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The requirement of consultation |
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87 | (1) |
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88 | (1) |
15 Links with other areas of law |
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89 | (10) |
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Links with the Human Rights Act 1998 |
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89 | (1) |
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Relevance of the Human Rights Act 1998 in the passage of the Bill |
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90 | (1) |
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Articles 2, 3 and 8 of the European Convention on Human Rights |
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91 | (2) |
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Links with the Mental Health Act 1983 |
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93 | (1) |
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Mental incapacity compared with mental disorder |
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93 | (1) |
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Consent to treatment under the Mental Health Act 1983 |
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94 | (1) |
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Other links with the Mental Health Act 1983 |
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95 | (1) |
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Links with the children's law |
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95 | (1) |
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Links with the common law |
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96 | (3) |
16 Deprivation of Liberty Safeguards |
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99 | (19) |
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99 | (1) |
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Lawful ways to deprive someone of their liberty |
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99 | (1) |
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The Deprivation of Liberty Safeguards (DOLS) procedure |
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100 | (1) |
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100 | (1) |
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100 | (1) |
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Request for a standard authorisation |
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101 | (1) |
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Standard authorisation application information |
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101 | (3) |
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Assessment to establish if an unauthorised deprivation of liberty is occurring |
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104 | (1) |
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104 | (1) |
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105 | (1) |
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106 | (1) |
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106 | (1) |
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106 | (2) |
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Relevant person's representative |
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108 | (1) |
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109 | (1) |
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110 | (1) |
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Authorisation of deprivation of liberty Giving information |
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111 | (1) |
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111 | (1) |
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111 | (1) |
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Expiry of an authorisation |
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111 | (2) |
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113 | (1) |
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Independent Mental Capacity Advocates (IMCA) |
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114 | (1) |
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115 | (1) |
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Suspension of an authorisation |
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116 | (1) |
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Protection from liability |
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116 | (1) |
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116 | (2) |
17 The interface between the Mental Capacity Act and the Mental Health Act |
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118 | (16) |
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118 | (2) |
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Treatment (amounting to a restriction of movement) |
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120 | (1) |
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Treatment (amounting to a deprivation of liberty) |
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121 | (1) |
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Accommodation (amounting to a restriction of movement) |
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121 | (3) |
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Accommodation (amounting to a deprivation of liberty) |
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124 | (1) |
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Examples of provisions that can be used together |
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125 | (1) |
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Examples of provisions that cannot be used together |
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126 | (1) |
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127 | (1) |
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Examples of when the MCA may not be relied upon |
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128 | (2) |
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Care or treatment in a hospital amounting to deprivation of liberty |
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130 | (1) |
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131 | (3) |
18 The distinction between restriction of movement and deprivation of liberty |
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134 | (9) |
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134 | (1) |
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Article 5 of the ECHR and related case law |
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134 | (1) |
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P v Cheshire West and Chester; P & Q v Surrey County Council (2014) |
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135 | (1) |
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136 | (1) |
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Establishing the presence of deprivation of liberty, a practice guide |
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137 | (1) |
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Deprivation of liberty: aged under 18 |
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138 | (1) |
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Why is the distinction relevant to practice? |
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139 | (1) |
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The Mental Capacity Act 2005 |
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140 | (1) |
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The Mental Health Act 1983 |
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140 | (1) |
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Common law doctrine of necessity |
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140 | (1) |
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141 | (1) |
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141 | (1) |
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142 | (1) |
Appendix 1 The Mental Capacity Act 2005 |
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143 | (130) |
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Appendix 1A DOLS Regulations on Representative |
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260 | (5) |
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Appendix 1B DOLS Assessment Regulations |
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265 | (8) |
Appendix 2 Helping people to make their own decisions |
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273 | (2) |
Appendix 3 Assessing capacity |
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275 | (2) |
Appendix 4 Best interests checklist |
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277 | (2) |
Appendix 5 Multiple choice answers |
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279 | (5) |
Appendix 6 Lasting Powers of Attorney and advance decisions |
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284 | (1) |
Appendix 7 Identifying a deprivation of liberty |
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285 | (4) |
Appendix 8 The DOLS procedures |
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289 | (1) |
References |
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290 | (4) |
Index |
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294 | |