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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.

Details

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

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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 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.

Details

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

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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.

Details

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 April 2014

Robin Mackenzie and John Watts

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…

Abstract

Purpose

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.

Design/methodology/approach

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.

Findings

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.

Research limitations/implications

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

Originality/value

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.

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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.

Details

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

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Article
Publication date: 12 September 2016

Matthew Graham

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…

Abstract

Purpose

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.

Design/methodology/approach

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.

Findings

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.

Practical implications

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.

Originality/value

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.

Details

Working with Older People, vol. 20 no. 3
Type: Research Article
ISSN: 1366-3666

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Article
Publication date: 6 March 2017

Alex Ruck Keene

The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view…

Abstract

Purpose

The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity.

Design/methodology/approach

Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”).

Findings

It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.

Research limitations/implications

It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgments based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.

Originality/value

This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD.

Details

Advances in Mental Health and Intellectual Disabilities, vol. 11 no. 2
Type: Research Article
ISSN: 2044-1282

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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.

Details

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

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Article
Publication date: 19 August 2009

Ajit Shah, Natalie Banner, Karen Newbigging, Chris Heginbotham and Bill Fulford

The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 in England and Wales. This article reports on two similar, but separate, pilot questionnaire…

Abstract

The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 in England and Wales. This article reports on two similar, but separate, pilot questionnaire studies that examined the experience of consultants in old age psychiatry and consultants in other psychiatric specialities in the early implementation of the MCA pertaining to issues relevant to black and minority ethnic (BME) groups. Fifty‐two (27%) of the 196 consultants in old age psychiatry and 113 (12%) of the 955 consultants in other psychiatric specialities returned useable questionnaires. Eighty per cent or more of the consultants in old age psychiatry and consultants in other psychiatric specialities gave consideration to religion and culture and ethnicity in the assessment of decision‐making capacity (DMC). Almost 50% of the consultants in old age psychiatry reported that half or more of the patients lacking fluency in English or where English was not their first language received an assessment of DMC with the aid of an interpreter and 40% of the consultants in other psychiatric specialities reported that no such patients received an assessment of DMC with the aid of an interpreter.The low rate of using interpreters is of concern. The nature of the consideration and implementation of factors relevant to culture, ethnicity and religion in the application of the MCA and the precise reasons for the low rate of using interpreters in patients lacking fluency in English or English not being their first language require clarification in further studies.

Details

Ethnicity and Inequalities in Health and Social Care, vol. 2 no. 2
Type: Research Article
ISSN: 1757-0980

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