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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.

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.

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.

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 purpose of this paper is to present an exploration of the experiences of clinical psychologists involved in implementing the Mental Capacity Act (MCA).

Seven clinical psychologists were interviewed and transcripts were analysed using thematic analysis.

Six themes were identified: competence and confidence; understanding and uncertainty; colleagues, collaboration, conflicts, and challenges; working within the law: processes and penalties; the psychological way: specialist skills and difficult decision-making; and power, principles, and protecting the person. The themes highlighted how the specialist skills and professional values of clinical psychologists enhanced their ability to maintain person-centred approaches and uphold the empowering principles underlying the MCA. Data analysis indicated a shared narrative among clinical psychologists involved in implementing the MCA, despite differences in client groups and contexts.

This research highlighted the importance of finding solutions to current problems with the implementation of the MCA, such as training gaps and misunderstanding of the Act in relation to some of its complexities (e.g. deprivation of liberty safeguards and best interests decisions). These areas have the potential to significantly impact on a person's wellbeing. There is an ongoing need for training, multidisciplinary working, and strong effective supervision with ongoing reflexivity, if the Act is to be implemented in the holistic person-centred manner that are the foundations on which it was developed.

This research identifies the important role clinical psychologists have to play in this process. Their specialist skills can encourage a person-centred approach to the implementation of the MCA.

The Mental Capacity Act (MCA, 2005) provided a new legal framework for decision-making practice in England and Wales. This study aims to explore qualitative research on practitioners’ knowledge and experiences of the MCA in health and social care settings to inform practice and policy.

Four electronic databases and Google Scholar were searched in November 2019 for peer-reviewed, qualitative, English language studies exploring practitioners’ experiences and knowledge of the MCA in health and social care settings. Nine studies were included and appraised for methodological quality. Data were analysed using thematic synthesis.

Data revealed both positive aspects and challenges of applying the MCA in practice within five main themes, namely, travelling the “grey line”, the empowering nature of the MCA, doing the assessment justice, behaviours and emotional impact and knowledge gaps and confidence.

The fundamental principles of the MCA appear to be adhered to and embedded in practice. However, practitioners find mental capacity work remains challenging in its uncertainties. While calling for more training, they may also benefit from further MCA skills development and support to increase confidence and reduce apprehension.

This is the first systematic review to synthesise qualitative literature on practitioners’ experiences and knowledge of the MCA. Findings offer insight into practice experiences of the MCA and provide a basis for the development of training and supervisory support.

The purpose in writing this paper is to highlight the lack of knowledge of many who are involved in capacity assessments, especially non‐professionals such as carers of the learning disabled, and the view that current guidance for capacity assessments does not take into account issues of emotionality.

The approach is to discuss current guidance and practice, and to offer academic criticism and explanation.

The findings include the discovery that the Mental Capacity Act 2005 Code of Practice suggests that healthcare professionals and family/carers may undertake assessments of decision‐making capacity, yet the guidance it provides for their doing so overlooks salient issues. Many of those involved in the daily lives of those, who may lack decision‐making capacity (and thus be seen as legally incompetent) such as the learning disabled, demented, mentally ill and neurodiverse, must decide whether to respect their decisions as competent, or to disregard the decisions on the grounds of incompetence and to act in the person's best interests. As many will lack training in their clinical and legal responsibilities and liabilities, it is crucial that they, and those they care for, are protected by not only an increased knowledge of mental capacity legislation and practice, but also how it may apply to questions of emotionality and neurodiversity.

This paper expands and builds on the authors' previous research into including emotionality in assessments of capacity, and will be of use to practitioners in the field of learning disability, and other psychiatric specialities.

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.

Capacity is a key issue in decision making. Assessments of capacity determine whether someone's wishes are to be respected, or if a decision is to be made on his or her behalf. In this paper, current legal concepts of ‘capacity’ are briefly outlined, followed by an analysis of practical difficulties that are likely to be encountered in clinical practice when assessing capacity in adults with learning disabilities. Clinicians are alerted to external factors that may influence a person's decision‐making abilities, and possible ways of maximising capacity are presented. Finally, further research directions are suggested.

The Mental Health Act 2007 makes significant amendments to the Mental Health Act 2003, and also amends the Mental Capacity Act 2005 with the introduction of ‘deprivation of liberty safeguards’.