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This article addresses the difficult matter of interpreting the best interest principle, and offers advice for those who must make laws, and those who make decisions within the constraints of those laws. Our approach rests on an assumption that conclusions about best interest are best reached through a reasoned deliberative process. We suggest that legislators should not write substantive assumptions about what is best for every child into their laws; rather, they should indicate a non‐exhaustive list of key relevant considerations that decision‐makers can review and evaluate in each and every case. Further, the child's own perspective should be imperative in all deliberations about best interest, and a distinction must be made between objective fact and what is invoked as a substantive and contestable assumption. The article supplies a benchmark against which we may review and judge the actual efforts of legislators and decision‐makers to determine what is best for any child.

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.

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.

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.

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.

The prominence of the best interests principle in the Mental Capacity Act 2005 represented an important transition to a more resolutely patient-centred model regarding decision-making for incapable adults (“P”). This paper aims to examine the courts’ consideration of P’s values, wishes and beliefs in the context of medical treatment, reflect on whether this has resulted in a wide interpretation of the best interests standard and consider how this impacts clinical decision makers.

A particular focus will be on case law from the Court of Protection of England and Wales and the Supreme Court of the UK. Cases have been selected for discussion on the basis of the significance of their judgements for the field, the range of issues they illustrate and the extent of commentary and attention they have received in the literature. They are presented as a narrative review and are non-exhaustive.

With respect to values, wishes and beliefs, the best interests standard’s interpretation in the courts has been widely varied. Opposing tensions and thematic conflicts have emerged from this case law and were analysed from the perspective of the clinical decision maker.

This review illustrates the complexity and gravity of decisions of the clinical decision makers and the courts have considered in the context of best interests determinations for incapacitated adults undergoing medical treatment. Subsequent to the first such case before the Supreme Court of the UK, emerging case law trends relating to capacity legislation are considered.

The purpose of this paper is to evaluate health professionals' fidelity to the Mental Capacity Act (MCA) principles on determining mental capacity and arriving at best interests decisions in the care of individuals found to lack the relevant decision‐making capacity.

A retrospective review of the case records of 68 patients previously determined by clinicians as lacking mental capacity in at least one of three identified areas: treatment consenting capacity, capacity to decide on place of abode and capacity to manage financial affairs, was conducted. Notes were examined to determine how mental capacity was assessed and the process of arriving at best interests decisions in the care of the non‐capacitous individuals.

It was difficult to locate relevant entries as there were no designated folders for MCA related issues. There were (mostly) minimal entries made about the assessment process, only patchy documentation of the legal criteria used in capacity assessment, and which of the criteria the patient did not fulfil. Clinicians only partially followed the procedure prescribed by the MCA in determining best interests of non‐capacitous patients.

This paper highlights the need for health care professionals to better adhere to the principles of the MCA in assessing mental capacity and in determining the best interests of non‐capacitous individuals. Health care professionals and the public need to be better informed of the provisions of the MCA.

The purpose of this paper is to report the findings of the Confidential Inquiry into premature deaths of people with intellectual disabilities (CIPOLD) in relation to the Mental Capacity Act (England and Wales) (MCA) 2005.

CIPOLD reviewed the deaths of all known people with intellectual disabilities (ID) aged four years and over who had lived in the study area and died between 2010 and 2012.

The deaths of 234 people with ID aged 16 years and over were reviewed. There were two key issues regarding how the MCA was related to premature deaths of people with ID. The first was of the lack of adherence to aspects of the Act, particularly regarding assessments of capacity and best interests decision-making processes. The second was a lack of understanding of specific aspects of the Act itself, particularly the definition of “serious medical treatment” and in relation to Do Not Attempt Cardiopulmonary Resuscitation guidelines.

CIPOLD did not set out to specifically evaluate adherence to the MCA. It may be that there were other aspects relating to the MCA that were of note, but were not directly related to the deaths of individuals.

Addressing the findings of the Confidential Inquiry in relation to the understanding of, and adherence to, the MCA requires action at national, local and individual levels. Safeguarding is everyone's responsibility, and in challenging decision-making processes that are not aligned with the MCA, the authors are just as effectively protecting people with ID as are when the authors report wilful neglect or abuse.

CIPOLD undertook a retrospective, detailed investigation into the sequence of events leading to the deaths of people with ID. To the authors’ knowledge, this is the first time that such research has associated a lack of adherence to the MCA to premature deaths within a safeguarding framework.

The Mental Capacity Act (2005) is now in full operation in England and Wales. In this article, some of the common questions that professionals face on a day‐to‐day basis are discussed, including how to assess capacity and decide whether or not someone has capacity, what to do if someone lacks capacity and what could happen if someone does not follow the Mental Capacity Act.

The purpose of this paper is to explore the consequences for older people’s mental wellbeing of understandings relating to the Mental Capacity Act 2005 (MCA). The MCA seeks to maximise people’s abilities to make decisions and provides a framework for decisions to be made in a person’s best interests should they lack the mental capacity to do so themselves (Graham and Cowley, 2015). Practice varies widely amongst health and social care practitioners and little is known about the nature of interventions under the MCA or the outcomes for service users’ lives and health, especially their mental health and emotional wellbeing.

By reflecting upon existing evidence this position paper offers a narrative of how practice in applying the principles of the MCA may impact upon the mental wellbeing of older people. Drawing upon court of protection judgements and existing research the author analyses the way the MCA is understood and applied and how institutional mechanisms might hinder good practice.

There are tensions between policy imperatives and examples of practice linked to the MCA, the spirit of the MCA and tenets of good practice. Despite efforts on promoting choice, control and rights there is growing paradoxical evidence that the MCA is used as a safeguarding tool with the consequences that it constrains older people’s rights and that it may encourage risk averse practice. The consequences of this for older people are considerable and include lack of choice, autonomy and self-determination. This discussion suggests that anxiety in relation to the application of the MCA stills exists in practice and that maximising older people’s capacity and supporting decision making is central in promoting mental health and wellbeing.

This position paper will identify how the MCA might be interpreted in action through consideration of existing evidence. This paper may lead to future research on how understandings of the MCA are constructed and what values underpin its application from conception to outcomes in relation to understandings of risk, risk aversion, decision making and the potential and need for emancipatory practice. Essentially, the paper will discuss how the MCA actually seeks to enhance the mental health and emotional wellbeing of older adults by offering a rather radical approach to understanding people’s wishes and feelings, but how attitudes may lead to misunderstandings and negative outcomes for the individual.

In a climate of serious case reviews identifying concerns and abuses in care it is imperative that understanding of the MCA inform good practice. However, what constitutes good practice requires unravelling and the agendas, requirements and attitudes of interventions need considering from an epistemological perspective as well as to project how the outcomes of decision-making impact upon the mental health of older adults. This paper will discursively add value to the narrative around how the MCA is applied in practice and how chosen practice often constructs the mental wellbeing of older adults.

The purpose of this paper is to explore the way that practitioners apply the 2005 Mental Capacity Act (MCA) in complex cases involving people with learning disabilities who cannot make some key decisions by themselves. Like many qualitative studies it began with a felt sense that practitioners were struggling to apply the clear framework set out in the Act to real life situations, and that some of the decisions they were faced with did not fit neatly into the linear, cognitive model of decision making set out in the MCA and its accompanying guidance.

The study was conducted under the aegis of the Office of the Public Guardian (OPG) during 2010‐2011. A number of “complex” cases were obtained from Social Services, Primary Care Trusts and other organisations and subjected to thematic analysis. The current paper focuses on the 16 cases that involved people with learning disabilities.

A number of issues were identified that underlay the complexity of the cases examined. The cases drew attention, in particular, to the way in which practitioners were confronted with mounting concerns as opposed to single, discrete decisions, with the risk that decisions could be delayed until positive choices were much less available.

The aim of the study was to support the use of the Act in these situations and to give practitioners confidence in applying its principles across a wide range of diverse circumstances. Although the original study specifically related to the English legislation, the factors that led people to consider a case “complex” would apply equally in other jurisdictions. The study also shed light on difficulties that arise when intervening in less formal ways.

The purpose of this paper is to examine the dilemma at the heart of nursing care – the striving for empowerment of people in nurses’ care with the responsibility to protect vulnerable adults from harm. In doing so, it argues that in difficult and borderline cases, capacity assessment is complex and ultimately based on a judgment involving interpretation, and welcomes the views of clinicians who have challenged the procedural test of capacity in the Mental Capacity Act (MCA).

It presents an illustrative study of a person with acquired brain injury (ABI) resident in a nursing home, who had been assessed under the MCA and judged to have capacity regarding health and welfare decisions, who subsequently displayed a persistent and impulsive desire to leave the unit without thought of risk and vulnerability to herself, prompting safeguarding concerns, and a reassessment of her capacity.

The paper asserts that supporting people with ABI during capacity assessments, as the MCA decrees, in a very structured way can create a false sense of “capacity”. It maintains that executive impairments in ABI, being difficult to assess in formal settings, are best undertaken over time, in real-life settings, with evidence from third parties. It welcomes the MCA’s desire to protect individual autonomy and avoid undue paternalism, through ensuring people are not deemed to lack capacity simply because they make an unwise decision.

But it goes on to argue that in ABI it is often the fact of unwise decision making that is the prominent factor and main concern, particularly in regard to impulsive decision making. If nurses have to make a judgment as to how unwise decisions made with decision-making capacity are to be distinguished from unwise decisions made without it in people with ABI, then, the author concludes, a major area of difficulty for nurses is ascertaining when the presumption of capacity should be challenged, an area that an updated code of practice needs to clarify.

Brain Injury Case Managers (BICMs) work closely with individuals with Acquired Brain Injury (ABI), assessing needs, structuring rehabilitation interventions and providing support, and have significant experience of clients with impairments to decision making. The purpose of this paper is to explore the application of the Mental Capacity Act (MCA) and its guidance when applied to ABI survivors. This research aimed to: first, highlight potential conflicts or tensions that application of the MCA might pose, and second, identify approaches to mitigate the problems of the MCA and capacity assessments with ABI survivors. It is hoped that this will support improvements in the services offered.

Using a mixed method approach, 93 BICMs responded to an online questionnaire about decision making following ABI. Of these, 12 BICMs agreed to take part in a follow-up semi-structured telephone interview.

The data revealed four main themes: disagreements with other professionals, hidden disabilities, vulnerability in the community and implementation of the MCA and capacity assessments.

The findings highlight the need for changes to the way mental capacity assessments are conducted and the need for training for professionals in the hidden effects of ABI.

Limited research exists on potential limitations of the application of the MCA for individuals with an ABI. This paper provides much needed research on the difficulties surrounding mental capacity and ABI.