The aims of this research project were to further understand Approved Mental Health Professionals (AMHPs) and Best Interests Assessors’ (BIAs) views and feelings on their professional identity (in terms of their regulated profession) and the effect it has on their practice; and the experiences of people who have received services from AMHPs and BIAs, or those who work with them, and whether their experiences and perceptions differ across the professions; and whether BIAs intend to convert their status to AMCP and ways in which this has been influenced. A multimethod research approach was used, comprising a survey qualified and practising AMHPs; a survey of practising BIAs; focus groups of AMHPs and BIAs; interviews with people with experience of Mental Health Act assessments with AMHPs or ASWs. The study found that both the AMHP and BIA workforces are predominantly made up of social workers and predominantly employed by local authorities. Both professions, to varying degrees, believed that their specialist work was advanced, relational and values-based and for many it went beyond an extension of their primary qualification with enhanced legal literacy that was creative and nuanced. Overall, the majority of AMHPs and BIAs believed that social work had the greatest influence on the work. Generally, aspects of social justice and advocacy, as well as a high level of legal literacy, were clear indicators of the contribution of social work to both AMHP and BIA work. AMHPs and BIAs seem to experience very similar impacts on their health and wellbeing arising out of the challenges they experience. The main difference in this area was that AMHPs report finding their role more challenging than BIAs experience which is likely due to workload pressures and a lack of resources which is beyond their control.

This report draws on an examination of the literature and consultation with stakeholders directly involved in advance decisions to refuse treatment (ADRT) to identify ways of increasing awareness and uptake of ADRTs in Wales. The report looks at the current legal position in England and Wales, the current update and effectiveness of advance treatment refusals, attitudes to advance decisions and the views of health and social care practitioners. Barriers to the uptake up of ADRTs identified, include: misunderstanding about what is involved; scepticism about whether the patient’s wishes will be respected; and the mistaken belief that an ADRT is unnecessary if someone has already informed family members or healthcare professionals of what they would want. The report recommends actions for the Welsh Government, charities and other organisations to ensure people understand their options for advance care planning and their right to refuse treatment, if they so wish. These include: an increase in public education; correcting official forms that may mislead people about the legal status of their own or a relative’s expressed wishes; facilitating access to well designed ADRT forms/guidance and skilled support; normalising ADRTs (e.g. offering registration when patients sign up with a GP); training relevant practitioners to ensure that they understand what ADRTs are (and when they are valid and applicable), are able to provide appropriate guidance or referral, and can act in accordance with the law concerning them.

Assessment of the amendment, which introduced the liberty protection safeguards to replace the deprivation of liberty safeguards. the liberty protection safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019. LPS will provide the framework to determine whether a deprivation of liberty is necessary and proportionate for the care or treatment of an individual who lacks the mental capacity to consent to their arrangements, in England and Wales. They will replace the deprivation of liberty safeguards (DoLS) system, which was found to be “bureaucratic” and “too complex” by a House of Lords Committee in 2014. This impact assessment is an updated assessment of the Mental Capacity (Amendment) Act 2019. It provides an assessment of DoLS at present and fully funded, as well as for LPS as set out in the act.

Findings from a study to gather information from people who have experienced Do Not Attempt Resuscitation (DNAR) decision making, both since and prior to the Coronavirus pandemic. The report shows a worrying picture around the rights of involvement in care and treatment decisions, including DNARs. The evidence depicts serious issues of discrimination related to disability and age, and the intersection between the two, as well as other factors. Coronavirus has shone a spotlight on this, and some reported an increase in worrying DNAR decisions; but none of this is new, these problems are ongoing. The report’s key findings are: 100% of people involved said there needs to be more easily accessible information about human rights; almost 60% of people involved said they had received no information about their right to life during Coronavirus; 65% of people involved said that they (or a person they care for/about) had a DNAR order put on your medical file. 21% said they didn’t know; of those who had seen a DNAR order put in place almost half (47%) were not related to end-of-life care; less than a third of people (29%) who were involved in DNAR decision-making felt fully listened to, most felt listened to a bit (46%), and 25% felt not listened to; 91% of people involved felt that discrimination was an issue in the DNAR decisions they’d experienced.

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.

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.

The number of adults who self-neglect and thus fall under the aegis of local authority adult safeguarding procedures in England has increased substantially since the introduction of the Care Act 2014. The requirement for collaborative working between agencies dealing with these adults in a safeguarding context is explicit in government policy and legislation. Decisions made by the multiplicity of agencies that may work with people who self-neglect are largely guided by the Mental Capacity Act 2005 (MCA). The overall objective of this research was to develop a clearer understanding of how the range of agencies that might typically be involved in the life of a self-neglecting person work together. This article examines how agencies put the MCA into practice in their work with people who self-neglect, and how they understand their own and others’ roles and responsibilities in so doing. This qualitative study took place in two local authorities in England from 2016 to 2017 and informed a wider action research study which was completed in 2019. Non-probability purposive sampling was used to recruit participants from the professional groups who might typically be involved with self-neglect cases. À total of 245 participants from across 17 different professional groups took part in semi-structured interviews, in a group, paired or individual format, decided by their customary working configuration. Data from the interview transcripts was analysed using thematic analysis. Three key themes in relation to how participants understood the MCA and multi-agency working emerged from the analysis of this data set. These were; a lack of understanding of the MCA by participants and other agencies; a reluctance to engage with MCA assessments; and a perception of manipulation of the MCA by other professionals. This study underlines the importance of the informed application of the MCA in working with people who self-neglect, and an urgent need to consider how this could be enhanced if the service user is not to experience intrusive interventions resulting from professional misinterpretation.

The Mental Capacity Act requires that where a person (P) lacks capacity to make a decision her wishes and feelings be taken into account when deciding what is in her best interests. This article considers how the Court of Protection evaluates evidence from P concerning her wishes and feelings. It finds that the Court ignores evidence regarding current wishes and fails to engage with more ambiguous evidence where P desires conflicting outcomes or may be concealing her true feelings. This is unhelpful since it makes the resulting judgment unconvincing to observers. It is legally problematic, since the Court should be following the practices of other decision-makers under the Mental Capacity Act (MCA). And it is ethically problematic since it undermines P’s dignity and does not treat P as an actor whose evidence regarding her wishes and feelings has intrinsic status which the Court must make active efforts to engage with or discount rather than ignore.

There is little empirical research focusing on how social workers experience the law in their everyday professional practice, and still less on how mental health social workers experience assessment for compulsory admission under mental health law. The article is informed by a hermeneutic phenomenological approach, drawing on in-depth interviews and practitioner diaries with social work Approved Mental Health Professionals (AMHPs), providing exploration of how social work AMHPs experience compulsory assessment under mental health law in practice. This is revealed as a socio-relational process, involving a focus on the person in their environment in relation to others, such as family and professionals. Ethical challenges realising human rights social work practice are illuminated. This draws attention to how space for such practice can be eroded by systems conditions. The importance of amplifying the voice of the person assessed is highlighted in the context that their voice is severely diminished during the process of assessment. The article provides insights on the complexity involved in compulsory mental health practice, drawing attention to trust as an important concept. Finally, the article argues that realising human rights-oriented AMHP practice requires social work to challenge systems conditions that erode the ability to do so.