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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.

This article considers the effectiveness of two one‐day events designed to raise awareness of The Mental Capacity Act 2005 (MCA) in BME communities. The events were held using specially developed materials and were evaluated with the help of a 12‐item questionnaire. The results of the evaluation showed that there was an increase in the proportion of correct responses for 10 of the 12 questions after attending awareness‐raising events. The total score for all correct responses on the 12‐item questionnaire significantly increased after attending the awareness‐raising events. Collectively, the findings suggest that the awareness‐raising events were able to improve awareness of the MCA among representatives of BME communities. Such awareness‐raising events should be encouraged by health and social care providers

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.

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”).

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.

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.

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.

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 terms capacity and competence are often used interchangeably, but are actually distinct. This aim of this paper is to clarify the application of these terms, and to illustrate some of the practical benefits of distinguishing them.

The concepts of capacity and competence are discussed in relation to restrictions that are placed on choice and action, respectively, when these qualities are judged to be absent. The paper explores the distinction between these two concepts in relation to their legal status, assessment, and scope.

Mental capacity refers to the ability to make decisions, while competence refers to the ability to perform the actions needed to put decisions into effect. Questions of capacity are governed by legislation (in the UK: the Mental Capacity Act (MCA); the Adults with Incapacity (Scotland) Act and the Sexual Offences Act); they apply only to people who can be demonstrated to have a “mental disorder”, and trigger best‐interests decision making and other legal provisions if capacity is assessed as absent. Questions of competence involve a range of formal and informal assessment procedures, and can apply to anyone; they arise where others possess legal powers to control a person's actions.

In addition to clarifying the conceptual confusion that exists in this area, the paper also considers some areas of practice where the MCA can be invoked to promote competence, in addition to capacity.

The Mental Capacity Act 2005 introduced the role of the independent mental capacity advocate (IMCA). This is essentially a new safeguard for adults when they lack the capacity to make critical health and welfare decisions, particularly those without family or friends to represent them. IMCAs can have a statutory role in adult protection cases that is detailed in this paper. Advocacy Partners (AP) was one of seven organisations piloting this service in England before the service was introduced nationally in April 2007. AP is now commissioned to provide the IMCA service in 10 local authorities in the South East. Of the 270 cases referred to Advocacy Partners that have met the criteria for an IMCA since the Act was implemented, 38 were referred as part of adult protection proceedings. This early experience of IMCA involvement in adult protection cases is discussed.

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 explore and critique the conceptual and terminological shift – particularly from “vulnerability” to “adult at risk” – in adult safeguarding under the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014.

The paper compares the notion of the vulnerable adult in safeguarding, with the notion of an adult at risk under the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014 and questions to what extent such a shift addresses existing criticisms of “vulnerability”.

The paper criticises the notion of the “vulnerable adult” for perpetuating the stigma associated with an impairment or disability, and for the types of legal and policy responses deemed appropriate under such an understanding of vulnerability. While efforts to replace the term “vulnerable adult” with “adult at risk” are, to some extent, to be welcomed, “adult at risk” under the legislation relies on the same characteristics for which the “vulnerable adult” has been criticised. Nevertheless, the safeguarding provisions under the two Acts have made some strides forward in comparison to their legal and policy predecessors and the notion of the “vulnerable adult”.

This paper’s originality and value lie in its scrutiny of the notion of “vulnerability” in adult safeguarding, in comparison to the newer terminology of an “adult at risk”, whilst also suggesting that in important respects – in relation to the interventions deemed appropriate where an adult is perceived to be at risk – the two pieces of legislation are a marked improvement on their predecessors. It also offers some thoughts as to how criticisms of the new legislation may be overcome.

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 new Mental Health Act 2007 substantially amends the Mental Health Act 1983. In this article, some of the most important changes are highlighted, including changes to the definition of mental disorder, the new professional roles of approved mental health practitioner and responsible clinician, and the new powers for Supervised Community Treatment. The likely impact of these changes for people with learning disability and professionals working with them is discussed.