Report and video walkthrough, from Alex Ruck Keene on recent mental capacity cases, as detailed in the 39 Essex Street May 2023 newsletter

BJPsych Advances. Cambridge Core. An article by Chloe Beale, James Lee-Davey, Tennyson Lee, Alex Ruck Keene. The second of two articles looking at assessment of mental capacity in clinical practice. In it, we explore capacity assessments in the context of suicidal thoughts and acts.

BJPsych Advances. Cambridge Core. An article by Chloe Beale, James Lee-Davey, Tennyson Lee, Alex Ruck Keene
‘…given the complexity of actual situations. We may know the stages of the test for capacity, but do we really understand what they mean and how to assess them? In this, the first of two articles examining the MCA and challenges in its application, we add to existing legal guidance to explore capacity assessment in detail…’

39 Essex Chambers has developed an unrivalled set of resources for those seeking to apply and understand the Mental Capacity Act 2005, as well as to understand the place of mental capacity within the law more generally. ‘

Purpose: The Mental Capacity Act (MCA, 2005) provided a new legal framework for decision-making practice in England and Wales. This study aims to explore qualitative research on practitioners’ knowledge and experiences of the MCA in health and social care settings to inform practice and policy. Design/methodology/approach: Four electronic databases and Google Scholar were searched in November 2019 for peer-reviewed, qualitative, English language studies exploring practitioners’ experiences and knowledge of the MCA in health and social care settings. Nine studies were included and appraised for methodological quality. Data were analysed using thematic synthesis. Findings: Data revealed both positive aspects and challenges of applying the MCA in practice within five main themes, namely, travelling the “grey line”, the empowering nature of the MCA, doing the assessment justice, behaviours and emotional impact and knowledge gaps and confidence. Practical implications: The fundamental principles of the MCA appear to be adhered to and embedded in practice. However, practitioners find mental capacity work remains challenging in its uncertainties. While calling for more training, they may also benefit from further MCA skills development and support to increase confidence and reduce apprehension. Originality/value: This is the first systematic review to synthesise qualitative literature on practitioners’ experiences and knowledge of the MCA. Findings offer insight into practice experiences of the MCA and provide a basis for the development of training and supervisory support.

Purpose: Deprivation of Liberty Safeguards (DoLS), as part of the Mental Capacity Act 2005 (DoLS, 2007), was established to provide a legal framework for decision-making in respect of adults who lack capacity to make decisions in relation to their care and residence in England and Wales. The purpose of this study was to explore the DoLS decision-making process from the perspectives of health and social care practitioners when working with individuals with an acquired brain injury (ABI). Design/methodology/approach: A total of 12 health and social care practitioners were interviewed in 2019–2020 about their experiences of using and making or supporting decisions in the DoLS framework with ABI survivors. Data were analysed, and a tentative explanation of variations in DoLS decision-making was developed. Findings: Three distinct approaches emerged capturing different decision-making styles (risk-averse, risk-balancing and risk-simplifying) which appeared to influence the outcome of DoLS assessments. A range of mediating factors seemed to account for the variability in these styles. The wider contextual challenges that impact upon practitioners’ overall experiences and use of DoLS processes in their ABI practice were noted. Research limitations/implications: The findings highlight a need for changes in practice and policy in relation to how DoLS or similar processes are used in decision-making practice with ABI survivors and may be relevant to the implementation of the Liberty Protection Safeguards that are replacing the DoLS system. Originality/value: To the best of the authors’ knowledge, this is the first study to explore accounts of DoLS decision-making practices in ABI service.

Purpose: This paper aims to examine reform of mental health legislation in England and Wales. It covers the period from the introduction of the 1983 MHA to the proposed reforms outlined in the Wessley Review that was published in December 2018. Design/methodology/approach: This is a literature-based project. Findings: Reform of the mental health legislation reflects two potentially conflicting strands. One is the state’s power to incarcerate the “mad”, and the other is the move to protect the civil rights of those who are subject to such legislation. The failures to development adequately funded community-based mental health services and a series of inquiries in the 1990s led to the introduction of Community Treatment Orders in the 2007 reform of the MHA. Research limitations/implications: The development of mental health policy has seen a shift towards more coercive approaches in mental health. Practical implications: The successful reform of the MHA can only be accomplished alongside investment in community mental health services. Originality/value: The paper highlights the tensions between the factors that contribute to mental health legislation reform.

Purpose: The purpose of this paper is to consider the role of social work professional evidence in mental capacity law, specifically Court of Protection proceedings. The authors analyse how social workers perform as evidence givers in this domain and how social work as a profession is perceived alongside other professions within the context of adult social care decision-making in mental capacity law. Design/methodology/approach: This paper draws on textual evidence from judgments and existing empirical data published elsewhere. The authors consider the contribution of social work professional expertise to best interests decision-making in formal legal proceedings which, in turn, reflects on how social work expertise is relevant in everyday practice. Findings: The findings of this paper include that social workers are well placed to be experts on best interests decision-making in mental capacity law. However, the authors show that the Court of Protection has not always endorsed this form of social work expertise in its judgments, meaning that social workers can struggle to articulate an expert knowledge base. Originality/value: Overall, the authors conclude that social work evidence is incredibly valuable as expertise about the person’s best interests, particularly in the domain of welfare cases and care planning.

Objective: To investigate how people with communication and understanding difficulties, associated with conditions such as dementia, autism and intellectual disability, are represented in research guidance supplementary to the Mental Capacity Act (MCA: 2005) in England and Wales. Methods: A documentary survey was conducted. The sample comprised the MCA Code of Practice (CoP: 2007) and 14 multi‐authored advisory documents that were publicly available on the Health Research Authority website. Textual review of key words was conducted followed by summative content analysis. Results: Representation of people with communication and understanding difficulties was confined to procedural information and position statements that focused mainly on risk management and protection. Whilst a need to engage potential participants was recognized, guidance provided was imprecise. Conclusions: Tensions exist between the protection versus empowerment of people with communication and understanding difficulties in research. The development of structured, evidence‐based guidance is indicated. Patient or public contribution: People with communication and understanding difficulties and carers participated in a working group to explore, discuss and interpret the findings.

With a growing global ageing population, approaches to assess and support decision-making are becoming more pertinent. This scoping review aimed to identify and map current knowledge on assessment of older adults’ decision-making capacity in relation to independent living. A five-stage scoping review framework was followed. Inclusion criteria were papers on assessment approaches used to evaluate decision-making capacity of older adults, aged 60 years and over for independent living, including studies involving people with cognitive impairment and dementia. Five databases were searched for publications with eligibility criteria from January 2000 to December 2020; 4,118 results were retrieved from sources, resulting in 29 publications being analysed, eight of which were research reports. Publication characteristics and methodologies varied; however, many common components of decision-making capacity assessment for independent living were identified including cognitive, functional, environmental and risk assessment. Overall, a multidisciplinary approach was recommended, and consideration of the person’s values and preferences is noted in many publications. Decision-making capacity assessment for independent living of older adults requires multicomponent, multidisciplinary assessment. Future work is needed to examine this from the perspective of older adults and their caregivers.

Up to 75% of UK care home residents may lack the mental capacity to make certain decisions (Wade, Clinical Rehabilitation, 2019, 33, 1561-1570). Care home staff need evidence-based tools to help them assess residents’ mental capacity and provide decision-making support (NICE, Decision-making and mental capacity NICE guideline NG108, 2018). The Mental Capacity Assessment Support Toolkit (MCAST) was designed to support multidisciplinary healthcare staff to prepare, complete and document legally compliant mental capacity assessments. MCAST has not yet been trialled in care homes. This study used a descriptive qualitative design to: (a) understand the current challenges faced by care home staff when supporting residents to make decisions and participate in mental capacity assessments; (b) explore staff members’ support needs in this context and (c) to identify if and how the toolkit could be adapted for use in care homes. A purposive sample of 29 staff working as managers (n = 18), nurses (n = 7) and care assistants (n = 4) across five care homes in North West England participated in five semi-structured focus groups between May and July 2019. Data from the focus group transcripts were analysed thematically (Braun & Clarke, Qualitative Research in Psychology, 2006, 3, 77-101). Five main themes were identified: (a) involvement of residents in decision-making; (b) approaches to mental capacity assessment; (c) working with residents with communication difficulties; (d) feelings about practice and (e) responses to MCAST. Participants appeared competent and confident about supporting decision-making and assessing capacity, but recognised the complexity of this area of practice, and identified a need for further support. They reported a range of challenges, including accessing support from speech and language therapists for residents with communication needs. They responded positively to the toolkit and were keen to use it in practice. This study suggests that care home staff would benefit from, and welcome, support to develop their practice. Furthermore, MCAST appears usable in this context and formal feasibility testing is justified.

This study explores the experiences of professionals who worked with care home residents with impaired mental capacity in England and Wales during the COVID-19 pandemic. It explores (i) how competing risks were balanced and (ii) how the Mental Capacity Act (MCA) functioned in care homes under pandemic conditions, with particular focus on its associated Deprivations of Liberty Safeguards (DoLS) and Independent Mental Capacity Advocacy (IMCA) systems. Between March and May 2021, an online survey and five focus groups aimed at professionals who worked in or with care homes during the pandemic, were held. The study explored issues pertaining to residents with impaired mental capacity, alongside several other topics on which the authors report elsewhere. For this paper, the researchers filtered data to only include responses from ‘capacity professionals’. The resulting sample comprised 120 (out of 266) survey participants and 18 (out of 22) focus group participants. The researchers performed manifest content analysis on the filtered data and found that (1) participants reported a ‘massive discrepancy’ between the ways different care homes balanced the risk of COVID-19 infection with the risks associated with severe restrictions. (2) Some suggested this was due to vague guidance, as well as care home type and size. Participants told us the pandemic (3) obstructed smooth operation of statutory safeguards designed to protect residents’ human rights and (4) resulted in confusion about the remit of the MCA during a public health crisis. The findings raise concerns about the impact of pandemic-related measures upon care home residents with impaired mental capacity. The researchers urge further exploration and analysis of (a) the variability and inconsistency of restrictions applied at care homes, (b) the strain placed on key safeguards associated with the MCA, (c) uncertainty about the remit of the MCA during a public health crisis and (d) the human rights implications hereof.