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A milestone was reached in July 2013, when the Mental Capacity Act 2005 (MCA 2005) was scrutinised by the Supreme Court for the first time in Aintree University Hospitals NHS Foundation Trust v James  UKSC 67,  COPLR 492. In this article, three of the barristers involved in the case outline the background to and the material points in the decision of the Supreme Court, and then discuss a number of its implications. They argue that all decision-makers will find themselves challenged by the Supreme Court’s interpretation of s 4 of the MCA 2005, namely that the choice that P would have made between the available options should be followed where that choice can be reliably identified.They further argue that the approach adopted by the Supreme Court to the determination of best interests in the context of medical treatment is one that makes clear an important and difficult gap between judges and clinicians in the assessment of when life-sustaining medical treatment should be withheld.Finally, they analyse the implications of the decision of the Supreme Court for practice and procedure relating to medical treatment applications to the Court of Protection.
The full version of this article appears in issue 1 of 2014 of Elder Law Journal. If you subscribe to the journal please click here to read the full article.
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