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Article
Publication date: 11 December 2008

Robert Brown

Major changes are taking place in the law for those working in the mental health field. This article looks at the impact of the Mental Capacity Act (2005) (most of which…

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Abstract

Major changes are taking place in the law for those working in the mental health field. This article looks at the impact of the Mental Capacity Act (2005) (most of which was implemented in October 2007) and the Mental Health Act (2007) (the main provisions of which came into effect in October 2008). Key elements of each of these two acts will be covered. The ‘Bournewood Safeguards’ inserted into the Mental Capacity Act (2005) by the Mental Health Act (2007) will also be described.

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The Journal of Mental Health Training, Education and Practice, vol. 3 no. 4
Type: Research Article
ISSN: 1755-6228

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Article
Publication date: 1 December 2006

Toby Williamson

The Mental Capacity Act 2005 comes into effect in England and Wales in 2007. The Act contains principles, procedures and safeguards to empower people to make decisions for…

Abstract

The Mental Capacity Act 2005 comes into effect in England and Wales in 2007. The Act contains principles, procedures and safeguards to empower people to make decisions for themselves wherever possible, but also to ensure that decisions made on their behalf if they lack the mental capacity to make the decision themselves are done in their best interests. The Act will apply to anyone working in the supported housing field or residential care where residents may lack the capacity to make decisions as a result of illness, injury or disability. This article gives an overview of the Mental Capacity Act and its relevance to the field of supported housing.

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Housing, Care and Support, vol. 9 no. 4
Type: Research Article
ISSN: 1460-8790

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Article
Publication date: 1 March 2007

Toby Williamson

2007 marks a major step forward in the history of adult protection with the implementation of the Mental Capacity Act in England and Wales. Understandably, debates about…

Abstract

2007 marks a major step forward in the history of adult protection with the implementation of the Mental Capacity Act in England and Wales. Understandably, debates about adult protection have usually focused on the more obvious types of abuse ‐ sexual, physical, financial and emotional. The Mental Capacity Act addresses a much wider issue of abuse where a person's right to make their own decisions, and to have proper safeguards and protection if decisions need making on their behalf, is overridden or ignored. This article gives an overview of the Mental Capacity Act and its relevance to the files of adult protection.

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The Journal of Adult Protection, vol. 9 no. 1
Type: Research Article
ISSN: 1466-8203

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Article
Publication date: 15 May 2009

Ajit Shah, Chris Heginbotham and Mat Kinton

The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 within England and Wales as a framework for making decisions about incapacitated persons' care and…

Abstract

The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 within England and Wales as a framework for making decisions about incapacitated persons' care and treatment generally not amounting to a deprivation of their liberty (although such could be authorised under its powers by the new Court of Protection). From a planned date of April 2009, the MCA is to be enlarged by the provisions of the Mental Health Act 2007 (MHA 2007) to encompass deprivation of liberty, with the addition of a new framework of Deprivation of Liberty Safeguards (DOLS). The MHA 2007 also revised significant aspects of the Mental Health Act 1983 (MHA), which were implemented in November 2008. The interface between the MCA, as amended to include DOLS, and the revised MHA is complex and potentially ambiguous. This paper describes in detail some issues that may arise at the interface of the two acts, and seeks to inform professionals involved in the use of these legal frameworks of the resulting complexity.

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Mental Health Review Journal, vol. 14 no. 1
Type: Research Article
ISSN: 1361-9322

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Article
Publication date: 16 September 2011

Oluwatoyin Sorinmade, Geraldine Strathdee, Catherine Wilson, Belinda Kessel and Obafemi Odesanya

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…

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Abstract

Purpose

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.

Design/methodology/approach

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.

Findings

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.

Originality/value

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.

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Quality in Ageing and Older Adults, vol. 12 no. 3
Type: Research Article
ISSN: 1471-7794

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Article
Publication date: 1 August 2007

Yeslin Gearty

Monday 1 October sees the implementation of the majority of the Mental Capacity Act 2005 (the Act). Parts of the Act came into operation in April 2007, namely the creation…

Abstract

Monday 1 October sees the implementation of the majority of the Mental Capacity Act 2005 (the Act). Parts of the Act came into operation in April 2007, namely the creation of a new criminal offence of wilful neglect or ill treatment, the provision of Independent Mental Capacity Advocates (IMCAs) in England, and the Code of Practice governing the Act.The months leading up to October have been an exceptionally busy time for the Public Guardianship Office (PGO). The new legislation creates a new Office of the Public Guardian (OPG), which will replace the existing PGO. But there is more to this change than a simple re‐arrangement of words, as shown in this article.

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The Journal of Adult Protection, vol. 9 no. 3
Type: Research Article
ISSN: 1466-8203

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Article
Publication date: 12 February 2018

Daniel T. Wilcox, Leam A. Craig, Marguerite L. Donathy and Peter MacDonald

The purpose of this paper is to consider the impact of mental capacity legislation when applied to parents with learning difficulties who lack capacity within childcare…

Abstract

Purpose

The purpose of this paper is to consider the impact of mental capacity legislation when applied to parents with learning difficulties who lack capacity within childcare and family law proceedings in England and Wales.

Design/methodology/approach

The paper relies on a range of material including reports published by independent mental health foundations, official inquiries and other public bodies. It also refers to academic and practitioner material in journals and government guidance.

Findings

The paper critically reviews the application of the guidance when assessing mental capacity legislation as applied in England and Wales and offers by way of illustration several case examples where psychological assessments, and the enhancement of capacity, have assisted parents who were involved in childcare and family law proceedings.

Research limitations/implications

There has been little published research or governmental reports on the number of cases when parents involved in childcare and family law proceedings have been found to lack capacity. No published prevalence data are available on the times when enhancing capacity has resulted in a change of outcome in childcare and family law proceedings.

Practical implications

The duty is on the mental health practitioners assessing mental capacity that they do so in a structured and supportive role adhering to good practice guidance and follow the guiding principles of mental capacity legislation assuming that the individual has capacity unless it is established that they lack capacity. Guidance and training is needed to ensure that the interpretation of the Mental Capacity Act (MCA) and its application is applied consistently.

Social implications

For those who are considered to lack mental capacity to make specific decisions, particularly within childcare and family law proceedings, safeguards are in place to better support such individuals and enhance their capacity in order that they can participate more fully in proceedings.

Originality/value

While the MCA legislation has now been enacted for over ten years, there is very little analysis of the implications of capacity assessments on parents involved in childcare and family law proceedings. This paper presents an overview and, in places, a critical analysis of the new safeguarding duties of mental health practitioners when assessing for, and enhancing capacity in parents.

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Article
Publication date: 1 February 2008

John Dow

This article will examine the changes in law brought about by the Mental Capacity Act and consider the practical implications for health and social care staff.

Abstract

This article will examine the changes in law brought about by the Mental Capacity Act and consider the practical implications for health and social care staff.

Details

Journal of Integrated Care, vol. 16 no. 1
Type: Research Article
ISSN: 1476-9018

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Article
Publication date: 2 August 2010

Jonathan Parker, Bridget Penhale and David Stanley

The Mental Capacity Act 2005 (HM Government, 2005) introduced safeguards to protect people who lack capacity from intrusive research. While these safeguards stemmed from…

Abstract

The Mental Capacity Act 2005 (HM Government, 2005) introduced safeguards to protect people who lack capacity from intrusive research. While these safeguards stemmed from predominantly medical ethical review concerns and developments aimed to protect people from physical and psychological damage and harm, the Act relates to all forms of research. The implications of the requirements of the Act for the conduct of social care research and the identification of helpful approaches or development of new knowledge concerning people who may lack capacity are, as yet, unknown. There are some concerns that the Act does not fully account for social research, does not recognise its importance to and differences from health‐related research, and may even hamper such research from taking place. This paper describes the findings and implications from a research project funded by the Social Care Institute for Excellence (SCIE) and the Department of Health that considered the impact of the Mental Capacity Act 2005 on the ethical scrutiny and development of social care research. The particular focus of the study was processes relating to university research ethics committees (URECs). The study was undertaken in two stages, beginning with an online survey of UREC policies and procedures and was followed by interviews with social care researchers working in areas in which people may lack capacity according to the terms of the Act. Recommendations for research ethics review are made that will be of importance to practitioners, policy‐makers and researchers.

Details

Social Care and Neurodisability, vol. 1 no. 2
Type: Research Article
ISSN: 2042-0919

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Article
Publication date: 1 December 2007

Leam Craig, Claire Nagi and Roger Hutchinson

Assessment of mental capacity in people with learning disabilities involved in criminal proceedings has been debated, and the introduction of mental capacity legislation…

Abstract

Assessment of mental capacity in people with learning disabilities involved in criminal proceedings has been debated, and the introduction of mental capacity legislation in the United Kingdom makes provisions for people who lack the capacity to make decisions about their welfare. However, while the new legislation is designed to protect people who lack the mental capacity to make decisions, it is not clear how this legislation applies in criminal cases where the capacity to consent to sexual relations has been questioned. Until recently there was no clear definition of capacity to consent to sexual relations, and the aim of this paper is to consider the key aspects of this legislation and apply it to a case example. The definitions and assessment procedures involved in assessing ‘mental capacity’ are considered, and practice guidance for mental health professionals working in this field is offered.

Details

The British Journal of Forensic Practice, vol. 9 no. 4
Type: Research Article
ISSN: 1463-6646

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