The Mental Capacity Act 2005 and constent (Advice Style answer) - Free Essay Example

Sample details Pages: 7 Words: 2151 Downloads: 8 Date added: 2017/06/26 Category Law Essay Type Case study Did you like this example? Question 1 In this question, there are two main issues to be considered. Firstly, whether Gwen has the capacity to give consent to sterilisation and secondly, whether Gwen has the capacity to refuse to go to hospital for the kidney tests. The Sterilisation The fundamental issue for Gwen is whether she has capacity to consent to receive sterilisation. Don’t waste time! Our writers will create an original "The Mental Capacity Act 2005 and constent (Advice Style answer)" essay for you Create order The definition of capacity can be found in s.2(1) of the Mental Capacity Act 2005 (hereinafter referred to as à ¢Ã¢â€š ¬Ã‹Å"MCA 2005à ¢Ã¢â€š ¬Ã¢â€ž ¢) that à ¢Ã¢â€š ¬Ã‹Å"a person lacks capacity in relation to matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brainà ¢Ã¢â€š ¬Ã¢â€ž ¢[1]. This provision reflects the point that the MCA 2005 uses an issue-specific definition of capacity. In our question, Gwen is stated as having a moderate learning disabilities. Under para 4.12 of the MCA 2005 Code of Practice[2], a significant learning disabilities is treated as a condition which might involve an impairment or disturbance of the functioning of the brain. But it is arguably that Gwenà ¢Ã¢â€š ¬Ã¢â€ž ¢s leaning disability is merely assessed as moderate, so she probably has the capacity required to consent to medical treatment. Therefore, the question as to whether Gwen has the required capacity is to be determined in the light of s.3(1) MCA2005[3]. This section sets out that a person is labelled as lacking capacity if he is unable to understand the information; retain that information; use or weigh that information as part of the process of making the decision, or to communicate his decision. This test was derived from the leading case of Re C[4], where held that the patient had the capacity to refuse treatment on the basis that he was able to understand and retain relevant treatment. Applying this to our facts, we are told that Gwenà ¢Ã¢â€š ¬Ã¢â€ž ¢s behaviour has improved she has been at Greendale, can this be the basis that she may have the ability to understand the nature of sterilisation? Besides this, one important point that should never been left out on our facts is that Gwen has fear of anything to do with doctors, hospitals and medicines. Will this fear affects her capacity to make decision? In Re MB (Caesarean Sectio n)[5], it was held that the needle phobia caused the patient suffering an impairment of her mental functioning and this made her temporarily incompetent to make decision. But it is unlikely to be applied here because the crucial point in the case of Re MB (Caesarean Section)[6] was that the patient needed the treatment so much in order to save her life and that of the baby. While on our facts, the sterilisation suggested is for non-therapeutic reason and thus it is difficult to argue that the Gwenà ¢Ã¢â€š ¬Ã¢â€ž ¢s fear makes her incompetence. Hence, the answer as to whether Gwen has the capacity to decide is not obvious. On one hand, in the case of A Local Authority v Mrs A and Mr A[7], Bodey J was on the view that it is not necessary to show that the individual understood the broader issues surrounding pregnancy and the realities in bringing up a child in accessing her capacity to give consent on contraception, merely the understanding on proximate issue relating to contracept ion is sufficient to justify that capacity. Thus, it can be suggested that Gwen seems to have that as she has developed a friendship with a male resident in Greendale and it is reasonable to say that she may acquire the knowledge in relation to sexual intercourse and also the understanding on sterilisation. Whilst on the other hand, it might also be argued that the approach taken by Bodey J[8] is unrealistic. This was put forward by Keywood[9] in her article that it looks illogical to say that a decision made without real understanding on the broader consequences of the particular medical treatment can be regarded as an autonomous decision. It is submitted that the law regarding this area remains unclear and it is difficult to see how the court will decide whether or not Gwen has capacity to refuse the sterlisation. At this point, s.1(2) MCA 2005[10] may play a crucial role as it stresses that a person should be presumed as competence, unless the medical profession can prove o therwise. Since we are unsure as to whether or not Gwen has capacity to decide on the sterilisation, we shall assume that she has. In accordance with the principle laid down in S v St Georgeà ¢Ã¢â€š ¬Ã¢â€ž ¢s NHS Trust[11], if Gwen has capacity, she has the absolute right to decide whether or not to receive the sterilisation. This means that she cannot be forced to receive the treatment if she does not consent on it, irrespective of the facts that it may be an unwise decision (s.1(4) MCA 2005[12]). If however, Gwen may be regarded as lacking capacity due to her fear and thus, by virtue of s.1(5) of MCA 2005[13], the sterilisation can be carried out if it is in her best interest. So the next question is whether the sterilisation is at Gwenà ¢Ã¢â€š ¬Ã¢â€ž ¢s best interest? s.4 of MCA 2005[14] sets out a number of factors to be taken into account in determining whether the proposed medical treatment is for the patientà ¢Ã¢â€š ¬Ã¢â€ž ¢s best interest. Nonetheless, in accordance with para 8.22 of Code of Practice[15], in ascertaining whether a sterilisation is in a patientà ¢Ã¢â€š ¬Ã¢â€ž ¢s best interest under s.4, the court should follow the approach they have developed in the earlier cases. In Re F (A Mental Patient: Sterilisation)[16], it was held that the à ¢Ã¢â€š ¬Ã‹Å"best interestà ¢Ã¢â€š ¬Ã¢â€ž ¢ test is not to be assessed as same as the Bolam test[17]. It was not be sufficient to show that there was a respectable medical opinion in support of sterilisation, but the court must, as affirmed in Re MM (An Adult)[18], also take into account the broader ethical, social, moral and emotional considerations. However, it must be noted that, according to Re B[19], the interests of the cares are not to be taken into account but their views may be persuasive in informing the court what is for the patientà ¢Ã¢â€š ¬Ã¢â€ž ¢s best interest. Applying this to our facts, the court may take into account the view of the support workers and that of Gwenà ¢Ã¢â€š ¬ â„ ¢s father, but still the final decision is on the court. One case that must be look into together with our facts is the case of Re A (Male Sterilisation)[20]. In this case, A was a 28 years old man who had Down Syndrome. His mother who has now unable to take care of him applied to the High Court for a declaration that the sterilisation operation was at Aà ¢Ã¢â€š ¬Ã¢â€ž ¢s best interest and could be legally acted on him. Thorpe LJ adopted a à ¢Ã¢â€š ¬Ã‹Å"balance sheet approachà ¢Ã¢â€š ¬Ã¢â€ž ¢ and it was held that the sterilisation is not in Aà ¢Ã¢â€š ¬Ã¢â€ž ¢s best interest because there being no danger of pregnancy for him. However, since Gwen is a woman and there might be a risk for her to get pregnant by involving in unprotected sexual intercourse, it is likely that the case of Re A can be distinguished from our facts. Further, in Re B[21], Lord Oliver suggested that sterilisation will only be approved if it is a à ¢Ã¢â€š ¬Ã‹Å"last resortà ¢Ã¢â€š ¬Ã¢â€ž ¢. A com mon ground for wanting sterilisation is that there is a worry that the incapacitated person will become pregnant and be unable to deal with the pregnancy or look after the child. But in Re LC[22], the court held that the patientà ¢Ã¢â€š ¬Ã¢â€ž ¢s carers took care of her very well and it was very unlikely she would become pregnant. Thus, it is unlikely that sterilisation is the last resort for Gwen. Arguably, since Gwen is now under supervisions and the support workers realised the risk that she may get pregnant, they will be more cautious on this issue and hence, it is unlikely that she will get pregnant. Therefore, by following this reasoning, the court may not grant a permission of sterilisation and it cannot be performed on Gwen as it is not considered in her best interest. The Kidney Test The next issue is whether Gwen has the capacity to refuse to go to the hospital for the kidney test. First of all, we will need to determine whether Gwen has fulfilled the requirement se t out in s.2[23] and s.3[24] of the MCA 2005 for competency. As mentioned, MCA 2005 introduces issue-specific definition of capacity, this was shown in the leading case of Gillick v West Norfolk and Wishbech AHA[25], where the court was on the view that a patient may be found to have sufficient understanding to be able to consent to a simple course of treatment, but not have sufficient understanding to be able to consent to a complex medical procedure. Further, in Re T[26], Lord Donaldson suggested that à ¢Ã¢â€š ¬Ã‹Å"the more serious the decision, the greater the capacity requiredà ¢Ã¢â€š ¬Ã¢â€ž ¢. In the other words, even if the court decides that Gwen has the capacity to decide on the issue of sterilisation, this does not mean that she is competence enough to refuse the kidney test as her life is now depending on the treatment. By following the judgment is Re MB[27], it is arguably that Gwenà ¢Ã¢â€š ¬Ã¢â€ž ¢s fear to doctors, hospitals and medicines nominated her mental a bility to understand, weigh and retain the information as regards to the proposed kidney test, she is now temporarily incompetence and thus her refusal is invalid and the doctors must send her to the hospital which is clearly an action at her best interest at that moment. But on the other hand, it can be pointed out from our facts that Gwen did allow the doctor to examine her, does this mean that her fear to doctors, hospitals and medicines is not that severe to nominate her capacity to make decision? Again, there is no clear-cut answer. If Gwen is regarded as having capacity to refuse to go to hospital for kidney test, then she cannot be forced to do so even if her life is depending on it, by virtue of the principle laid down in s.1(4) of MCA 2005[28]. This was emphasised in the case of Re MB[29] where the court held that even if the patientà ¢Ã¢â€š ¬Ã¢â€ž ¢s life and that of her child are depend on the medical treatment, the treatment taken against her wishes would still be re garded as an unlawful infringement to her autonomy. (1992 words) Bibliography Books Herring J, Medical Law and Ethics (4th edn OUP, Oxford 2012) Jackson E, Medical Law, Text Cases and Materials (3rd edn OUP, Oxford 2013) Articles Keywood K, à ¢Ã¢â€š ¬Ã‹Å"Safeguarding Reproductive Health? The Inherent Jurisdiction, Contraception, and Mental Incapacityà ¢Ã¢â€š ¬Ã¢â€ž ¢ (2011) 19 MLR 326-333 Electronic Sources Buchanan A, à ¢Ã¢â€š ¬Ã‹Å"Mental Capacity, legal competence and consent to treatmentà ¢Ã¢â€š ¬Ã¢â€ž ¢ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1079581/ accessed 12 November 2014 Bunting A.P, à ¢Ã¢â€š ¬Ã‹Å"Guiding Principles in Medical Law: The Ability to Treatà ¢Ã¢â€š ¬Ã¢â€ž ¢ https://etheses.bham.ac.uk/968/1/Bunting05LLM.pdf accessed on 13 November 2014 , à ¢Ã¢â€š ¬Ã‹Å"The Book of à ¢Ã¢â€š ¬Ã…“Medical Law and Researchà ¢Ã¢â€š ¬Ã‚  On-Lineà ¢Ã¢â€š ¬Ã¢â€ž ¢ https://www.medreslaw.com/capacity.php accessed 13 Novemb er 2014 Tables of Statutes and Cases Table of Statutes Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 4.12). Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 8.22). Mental Capacity Act 2005, s.1 Mental Capacity Act 2005, s.2 Mental Capacity Act 2005, s.3 Mental Capacity Act 2005, s.4 Table of Cases A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Re A (Male Sterilisation) [2000] 1 FCR 193 Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206 Re C (Adults: Refusal of Treatment) [2004] 1 WLR 290 Re F (A Mental Patient: Sterilisation) [1990] 2 AC 1 Re LC (Medical Treatment: Sterilisation) [1997] 2 FLR 258 Re MB (Caesarean Section) [1997] 2 FLR 426 Re MM (An Adult) [2007] EWHC 2003 (Fam) Re T (Adult: Refusal of Treatment) [199 3] 2 All ER 649 St Georgeà ¢Ã¢â€š ¬Ã¢â€ž ¢s Healthcare NHS Trust v S [1998] 3 All ER 673 [1] Mental Capacity Act 2005, s.2(1). [2] Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 4.12). [3] Mental Capacity Act 2005, s.3(1). [4] Re C (Adults: Refusal of Treatment) [2004] 1 WLR 290. [5] Re MB (Caesarean Section) [1997] 2 FLR 426. [6] Ibid. [7] A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam). [8] Ibid. [9] K Keywood, à ¢Ã¢â€š ¬Ã‹Å"Safeguarding Reproductive Health? The Inherent Jurisdiction, Contraception, and Mental Incapacityà ¢Ã¢â€š ¬Ã¢â€ž ¢ (2011) 19 MLR 326-333. [10] Mental Capacity Act, s.1(2) [11] St Georgeà ¢Ã¢â€š ¬Ã¢â€ž ¢s Healthcare NHS Trust v S [1998] 3 All ER 673. [12] Mental Capacity Act 2005, s.1(4). [13] Mental Capacity Act 2005, s.1(5). [14] Mental Capacity Act 2005, s.4. [15] Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 8.22). [16] Re F (A Mental Patient: Sterilisation) [1990] 2 AC 1. [17] Bolam v Friern Hospital Management Committee [ 1957] 1 WLR 582. [18] Re MM (An Adult) [2007] EWHC 2003 (Fam). [19] Re B (A Minor) (Warship: Sterilisation) [1987] 2 All ER 206. [20] Re A (Male Sterilisation) [2000] 1 FCR 193. [21] Re B (A Minor) (Warship: Sterilisation) [1987] 2 All ER 206. [22] Re LC (Medical Treatment: Sterilisation) [1997] 2 FLR 258. [23] Mental Capacity Act 2005, s.2. [24] Mental Capacity Act 2005, s.3. [25] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. [26] Re T (Adult: Refusal of Treatment) [1993] 2 All ER 649. [27] Re MB (Caesarean Section) [1997] 2 FLR 426. [28] Mental Capacity Act 2005, s.1(4). [29] Re MB (Caesarean Section) [1997] 2 FLR 426.

Macroeconomics Healthcare - 1553 Words

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The History of Chinese Film free essay sample

History of Chinese Film The history of Chinese film has three separate threads of development: Cinema of Hong Kong, Cinema of China, and Cinema of Taiwan. The cinema of Mainland China after 1949 has grown up somewhat suppressed by the Communist regime until now. The Beginnings: Shanghai as the Center Motion pictures were introduced to China in 1896. The first recorded screening of a motion picture in China occurred in Shanghai on August 11, 1896, as an act on a variety bill. The first Chinese film, a recording of the Beijing Opera, The Battle of Dingjunshan( ), was made in November 1905. For the next ten years the production companies were mainly foreign-owned, and the domestic film industry did not start in earnest until 1916, centering around Shanghai, a thriving entrepot center and the largest city in the Far East. During the 1920s, film technicians from the United States trained Chinese technicians in Shanghai, and American influence continued to be felt there for the next two decades. The first truly important Chinese films were produced starting from the 1930s, when the progressive or left-wing films were made, like Cheng Bugaos Spring Silkworms (1933), Sun Yus The Big Road (1935), and Wu Yonggangs The Goddess (1934). During this time the Kuomintang struggled for power and control over the major studios, and their influence can be seen in the ensuing films produced. The post-1930 era is called the first golden period of Chinese cinema, where several talented directors appeared, most of them are leftist. The period also produced the first big Chinese movie stars, namely Hu Die, Ruan Lingyu, Zhou Xuan, and Jin Yan. Other major films of the period include Song of the Fishermen (1934), Crossroads (1937), and Street Angel (1937). The Japanese invasion of China, in particular their occupation of Shanghai, ended this golden run in Chinese cinema. All production companies all closed except Xinhua company, and many of the filmmakers left Shanghai, relocating in Hong Kong, Communist- and Nationalist-controlled regions, and elsewhere. The Second Golden Age: the late 1940s, and the Communist Era The film industry continued to develop after 1945. A major Chinese production house, the Lianhua Company, re-established itself in Shanghai after the war and once again became the basis for leftist directors. Many showed the disillusionment with the oppressive rule of s Nationalist Party. There were many classics produced during this period, such as Myriads of Lights (1948), Crows and Sparrows (1949), San Mao (1949), and the most important one was, The Spring River Flows East (1947). The Spring River Flows East, is a three-hour-long film which describes the struggles of ordinary Chinese folks during the Sino-Japanese war, this film was immensely popular during that time, making social and political references to the period. The Wenhua Film Company, one of the two important production companies formed by left-leaning film-makers in the city, also contributed some of the masterpieces of the era. A film by Shanghainese director Fei Mu, Springtime in a Small Town 1948), which was produced in Shanghai before the revolution, is often considered by Chinese film critics as the best Chinese film of all time, and certainly one of the most influential. With the Communist takeover in 1949, the government saw motion pictures as an important mass production art form and propaganda. The number of movie-viewers increased sharply, from 47 million in 1949 to 4. 15 billion in 1959. In the 17 years between the founding of the Peoples Republic of China and the Cultural Revolution, 6 03 feature films and 8,342 reels of documentaries and newsreels were produced, sponsored as Communist Party of China by the government. Chinese filmmakers were sent to Moscow to study Soviet filmmaking. In 1956, the Beijing Film Academy was opened. The first wide-screen Chinese film was produced in 1960. Animated_films using a variety of folk arts, such as papercuts, shadow plays, puppetry, and traditional paintings, also were very popular for entertaining and educating children. The most prominent filmmaker of this era is Xie Jin, whose two films in particular, The Red Detachment of Women (1961) and Two Stage Sisters (1965), exemplify the growing expertise China has in the craft of motion pictures. The Cultural Revolution and its Aftermath During the Cultural Revolution, the film industry was severely restricted. Almost all previous films were banned, and only a few new ones were produced. Feature film production came almost to a standstill in the early years from 1966 to 1972. In the years immediately following the Cultural Revolution, the film industry again flourished as a medium of popular entertainment. Domestically produced films played to large audiences, and tickets for foreign film festivals sold quickly. The industry tried to revive crowds by making more innovative films which take in ideas from the West. In the 1980s the film industry fell on hard times, faced problems of competition from other forms of entertainment and concern on the part of the authorities that many of the popular thriller and martial arts films were socially unacceptable. In January 1986 the film industry was transferred from the Ministry of Culture to the newly formed Ministry of Radio, Cinema, and Television . The end of the Cultural Revolution brought the release of scar dramas, which described the emotional traumas left by this period. The most popular of these is probably Xie Jins Hibiscus Town (1986), although they could be seen as late as the 1990s with Tian Zhuangzhuangs The Blue Kite (1993). The rise of the Fifth Generation Beginning in the mid-late 1980s, the rise of the so-called Fifth Generation of Chinese filmmakers brought increased popularity of Chinese cinema abroad. The first generation of filmmakers to produce Chinese films since the Cultural Revolution, they made traditional methods of storytelling and used more free and liberal approach. Yellow Earth (1984), directed by Chen Kaige and photographed by Zhang Yimou, was taken to mark the beginnings of the Fifth Generation. Chen Kaige and Zhang Yimou went on to produce works such as King of Children (1987), Farewell My Concubine (1993), Judou (1989), and Raise the Red Lantern (1991) . Other notable Fifth Generation directors include Wu Ziniu, Hu Mei, and Zhou Xiaowen. The Fifth Generation movement effectively ended in the Tiananmen_Square_protests in 1989. Sixth Generation and Beyond The recent era has seen the return of the amateur filmmaker as state censorship policies have produced an underground film movement loosely referred to as the Sixth Generation. These films are shot quickly and cheaply, which produces a documentary feel: long takes, hand-held cameras, ambient sound . Many films are joint ventures and projects with international investment. Some important Sixth Generation directors are Wang Xiaoshuai (The Days, Beijing Bicycle), Zhang Yuan (Beijing Bastards, East Palace West Palace), Jia Zhangke (Xiao Wu, Unknown Pleasures, Platform, The World), and Lou Ye (Suzhou River). Unlike the Fifth Generation, the Sixth Generation brings a more individualistic, anti-romantic life-view and pays more attention to contemporary urban life. A New Chinese International Cinema In 1999, the multi-national production lt;Crouching Tiger, Hidden Dragon gt; achieved success at the Western box. It provided an introduction to Chinese cinema to Westerners. In 2002, Hero (movie) was made as a second attempt to produce a Chinese film with the international appeal of Crouching Tiger, Hiden Dragon. The cast and crew featured many of the most famous Chinese actors who were also known in the West, including , , , , and . The film was a phenomenal success in most of Asia and topped the U. S. box office for two weeks. Its pretty much like this about chinese film history. And now my partner will introduced a typical film typeaction film.