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The purpose of this paper is to demonstrate that the common and statutory law governing children's capacity or competence to consent to and to refuse medical treatment is unsatisfactory and to suggest solutions.

Critical legal analysis of the law on assessing minors’ decision-making capacity in relation to legal recognition of their consent to and refusal of medical treatment.

Without legal mechanisms which protect both children and their rights, all children and young people are effectively disabled from exercising age and capacity-related autonomy and participation in decisions affecting their lives. Yet in English law, inconsistencies between legal and clinical measures of decision-making capacity, situations where compulsory medical or mental health treatment is lawful, and tensions between rights and duties associated with human rights, autonomy, best interests and protections for the vulnerable create difficulties for clinicians, lawyers and patients.

As the paper acknowledges in its recommendations, the views of stakeholders are needed to enrich and inform legal reforms in this area.

The paper makes suggestions to amend the law and clinical practice which are original and far reaching. The paper suggests that in order to observe children's rights while protecting them appropriately, the Mental Capacity Act 2005 and Deprivations of Liberty Safeguards should be applied to minors. The paper recommends the establishment of Mental Capacity Tribunals, similar in nature and purpose to Mental Health Tribunals, to provide legal safeguards and mechanisms to foster the supported decision-making envisaged in recent United Nations Conventions.

A brief review of the first three years of the Mental Capacity Act 2005 that was fully implemented during 2007.

The purpose of this paper is to present findings from a research project which investigated the approaches of different groups of assessors to the mental capacity assessments which are required to be conducted as part of Deprivation of Liberty Safeguards (DOLS).

Four case study vignettes were given to participants. Three groups involved in the DOLS assessment process were interviewed by telephone about the factors that may influence their capacity assessments.

Most assessors did not refer to the required two-stage test of capacity or the “causative nexus” which requires that assessors must make clear that it is the identified “diagnostic” element which is leading to the inability to meet the “functional” requirements of the capacity test. The normative element of capacity assessments is acknowledged by a number of assessors who suggest that judging a person’s ability to “weigh” information, in particular, is a subjective and value-based exercise, which is given pseudo objectivity by the language of the Mental Capacity Act (MCA). A number of elements of good practice were also identified.

In this exploratory study, participant numbers were small (n=21), and the authors relied on self-report rather than actual observations of practice or audit of completed assessments.

The findings are of relevance to all of those working in health and social care who undertake assessments of mental capacity, and will be helpful to all of those tasked with designing and delivering training in relation to the MCA 2005. They also have relevance to policy makers in the UK who are involved with reforms to DOLS regulations, and to those in other countries which have legislation similar to the MCA.

Much existing literature exhorts further training around the MCA. The authors suggest that an equally important task is for practitioners to understand and be explicit about the normative elements of the process, and the place of ethics and values alongside the more cognitive and procedural aspects of capacity assessments.

The purpose of this paper is to analyse trends over time and geographical variation in Deprivation of Liberty Safeguards (DoLS) applications for adults with learning disabilities.

Secondary analysis of national- and local authority-level statistics collected and reported by NHS Digital.

There has been a sharp national increase in the number of completed and granted DoLS applications regarding adults with learning disabilities since the 2014 “Cheshire West” Supreme Court judgement, with a greater proportion of completed DoLS applications being granted. There is extreme geographical variation across local authorities in England in the rates at which DoLS applications are being made and granted.

The extreme variation in DoLS applications regarding adults with learning disabilities is highly unlikely to be a function of differences in mental capacity and living circumstances experienced by adults with learning disabilities across local authorities, and urgent attention needs to be paid to this variation.

This is the first paper to analyse the geographical variation at local authority level for completed and granted DoLS applications regarding adults with learning disabilities.

The purpose of this paper is to explore the clinical implications of the case of AM and the ruling that the Mental Health Act no longer has primacy over other legislation in certain treatment situations.

Critical case analysis and discussion.

The Mental Capacity Act Deprivation of Liberty Safeguards could be used more widely, and in preference to the Mental Health Act, but this may cause problems to clinicians and other decision makers such as Mental Health Tribunals.

This case and its findings have not been widely discussed in academic or clinical practice literature.

This paper aims to respond to the findings of the initial phase of the Safeguarding Adults Programme (November 2009‐March 2010), which found an unexpected inverse relationship between referral rate for safeguarding adults and population size of local authority in the data captured from April 2008 to March 2009.

An analysis of regional safeguarding referral rates relative to population with a breakdown by service groups was undertaken; statistics from the economic deprivation index (EDI) were also used. A questionnaire was designed and sent out to the authorities regarding thresholds, eligibility, definitions, advice and information available to referrers, accuracy of recording and public awareness. The data analysed here cover the following year's safeguarding referrals.

The questionnaire revealed broad differences in thresholds, eligibility, definitions, advice and information available to referrers, accuracy of recording and public awareness campaigns across the studied authorities. These differences contribute to obscuring real differences in underlying processes. A highly significant relationship between EDI and safeguarding referral rates was found, implying real differences in abuse rates driven by underlying socio‐economic factors. Differences in abuse allegations were systematic, so that authorities with a particularly high level of referrals did not have unusually high contributions from particular service user groups or from particular referral sources. Similarly the nature of abuse allegations did not differ between authorities with high or low‐referral rates.

The paper investigates the reasons for variation and explores thresholds for safeguarding referrals.

The purpose of this paper is to present the findings of a study considering the application of the Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS). Practitioners from a range of professions were recruited to provide their views of how to respond to a variety of scenarios. GPs, nurses, social workers, physio/occupational therapists and care assistants were recruited to participate.

This study used the Delphi method to elicit participant views and generate consensus of opinion. The Delphi method recommends a large sample for heterogeneous groups, and round one had 98 participants from six different professional groups.

Participants did not respond consistently to the scenarios, but disagreed most significantly when patient decisions conflicted with clinical advice, and when to conduct a capacity assessment. These responses suggest that clinical responses vary significantly between individuals (even within settings or professions), and that the application of Mental Capacity Act (MCA) is complicated and nuanced, requiring time for reflection to avoid paternalistic clinical interventions.

Previous studies have not used a Delphi method to consider the application of MCA/DoLS. Because of this methods focus on developing consensus, it is uniquely suited to considering this practice issue. As a result, these findings present more developed understanding of the complexity and challenges for practitioner responses to some relatively common clinical scenarios, suggesting the need for greater clarity for practitioners.

The Zone of Parental Control (ZPC) is a concept that has been introduced in the Code of Practice for the revised Mental Health Act 1983, but guidance on its scope remains scanty. The purpose of this paper is to bring together recent rulings from case law and the original guidance, and make suggestions for clinicians when deciding if an intervention is within the Zone.

Review and examination of case law, legislation and legal guidance.

Deprivations of liberty fall outside the ZPC, but restrictions of liberty lie within; parental disagreement with care correlates strongly with care that lies outside the ZPC.

The findings of this article should aid clinicians in deciding whether a treatment regime lies within the ZPC.

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.