‘Clear explanation’ in mental capacity assessment

SUMMARY We comment on Martin Curtice's article on expert and professional reports for the Court of Protection, which highlights the importance of ‘clear explanation’ in mental capacity assessment. We put the Court in a broader context of the Mental Capacity Act and summarise recent research and education that aims to help give clinicians working in England and Wales capacity assessment guidance that is clinically grounded, multi-perspectival and legally defensible.

Broad concepts and messy realities: optimising the application of mental capacity criteria

Journal of Medical Ethics ◽

10.1136/medethics-2021-107571 ◽

2021 ◽

pp. medethics-2021-107571

Author(s):

Scott Y H Kim ◽

Nuala B Kane ◽

Alexander Ruck Keene ◽

Gareth S Owen

Keyword(s):

Decision Making ◽

Clinical Research ◽

Functional Capacity ◽

Functional Model ◽

Relevant Information ◽

Mental Capacity ◽

Capacity Assessment ◽

Diverse Range ◽

England And Wales ◽

Most jurisdictions require that a mental capacity assessment be conducted using a functional model whose definition includes several abilities. In England and Wales and in increasing number of countries, the law requires a person be able to understand, to retain, to use or weigh relevant information and to communicate one’s decision. But interpreting and applying broad and vague criteria, such as the ability ‘to use or weigh’ to a diverse range of presentations is challenging. By examining actual court judgements of capacity, we previously developed a descriptive typology of justifications (rationales) used in the application of the Mental Capacity Act (MCA) criteria. We here critically optimise this typology by showing how clear definitions—and thus boundaries—between the criteria can be achieved if the ‘understanding’ criterion is used narrowly and the multiple rationales that fall under the ability to ‘use or weigh’ are specifically enumerated in practice. Such a typology-aided practice, in theory, could make functional capacity assessments more transparent, accountable, reliable and valid. It may also help to create targeted supports for decision making by the vulnerable. We also discuss how the typology could evolve legally and scientifically, and how it lays the groundwork for clinical research on the abilities enumerated by the MCA.

Capacity assessment under the Mental Capacity Act 2005: Delivering on the functional approach?

Legal Studies ◽

10.1111/j.1748-121x.2009.00133.x ◽

2009 ◽

Vol 29 (3) ◽

pp. 464-491 ◽

Cited By ~ 9

Author(s):

Mary Donnelly

Keyword(s):

Functional Approach ◽

Mental Capacity ◽

Assessment Process ◽

Fundamental Aspect ◽

Capacity Assessment ◽

Substantial Impact ◽

Degree Of Protection ◽

Practical Operation ◽

A fundamental aspect of the Mental Capacity Act 2005 (MCA) is the statutory endorsement of a functional approach to capacity. In principle, this requires a separate assessment of capacity in respect of each decision to be made. Most capacity assessments take place at a non-judicial level, and, outside of day-to-day decisions, the most common assessors are likely to be healthcare professionals. This paper investigates the practical operation of the capacity assessment process at both judicial and non-judicial levels. It asks whether the process can deliver on the MCA's goal of preserving maximum decision-making freedom, while, at the same time, providing an appropriate degree of protection. It argues that assessors who are not legally trained encounter significant difficulties in carrying out the essentially legal task of assessing capacity. It also shows that assessors' values and biases, both professional and personal, are likely to impact on the conclusions reached. Having identified these difficulties, the paper considers their implications for the MCA's approach to capacity. It evaluates the attempts in the MCA itself to address assessors' limitations and argues that these will not have a substantial impact on the way in which capacity assessors operate. It considers other ways in which the quality of assessment could be improved and puts forward specific suggestions as to how greater assessor accountability can be delivered and increased rigour introduced to the capacity assessment process.

Mental Capacity Assessment, LPA, Court Appointed Deputy Application, and Ethical Issues related to Mental Capacity Act – 2021 UPDATE

The Singapore Family Physician ◽

10.33591/sfp.47.2.u2 ◽

2021 ◽

Vol 47 (1) ◽

Keyword(s):

Ethical Issues ◽

Mental Capacity ◽

Capacity Assessment ◽

Mental capacity assessment: a descriptive, cross-sectional study of what doctors think, know and do

Journal of Medical Ethics ◽

10.1136/medethics-2019-105819 ◽

2020 ◽

pp. medethics-2019-105819

Author(s):

Dexter Penn ◽

Anne Lanceley ◽

Aviva Petrie ◽

Jacqueline Nicholls

Keyword(s):

Best Practice ◽

Secondary Analysis ◽

Cross Sectional Study ◽

Mental Capacity ◽

Capacity Assessment ◽

Career Stage ◽

Sectional Study ◽

Cross Sectional ◽

Self Confidence ◽

BackgroundThe Mental Capacity Act (MCA) (2005) was enacted in 2007 in England and Wales, but the assessment of mental capacity still remains an area of professional concern. Doctors’ compliance with legal and professional standards is inconsistent, but the reasons for poor compliance are not well understood. This preliminary study investigates doctors’ experiences of and attitudes toward mental capacity assessment (MCAx).MethodsThis is a descriptive, cross-sectional study where a two-domain, study-specific structured questionnaire was developed, piloted and digitally disseminated to doctors at differing career stages employed in a large, multi-site National Health Service Trust in London over 4 months in 2018. Descriptive statistics and frequency tables adjusted for missing data were generated and secondary analysis was conducted.ResultsParticipants (n=92) were predominantly UK trained (82%), female (58%) and between the ages of 30 and 44 years (45%). Less than half (45%) of the participants reported receiving formal MCAx training. Only one-third (32%) of the participants self-rated themselves as very competent (29%) or extremely competent (4%). Self-reported MCA confidence was significantly affected by career stage with Consultants with over 10 years of experience reporting lowest confidence (p=0.001).ConclusionsThis study describes significant variation in practice by doctors and low self-confidence in the practice of MCAx. These results raise concerns that MCAx continues to be inconsistently performed by doctors despite appropriate awareness of the law and professional guidance on best practice.

Best interests provisions in the UK Mental Capacity Act 2005

The Psychiatrist ◽

10.1192/pb.bp.111.038273 ◽

2012 ◽

Vol 36 (12) ◽

pp. 459-462

Author(s):

Olufunso B. Aribisala

Keyword(s):

Decision Making ◽

Mental Capacity ◽

Best Interests ◽

England And Wales ◽

Reasonable Belief ◽

Mental Capacity Act ◽

The Uk

SummaryThe Mental Capacity Act 2005 is a critical statute law for psychiatrists in England and Wales. Its best interests provision is fundamental to substitute decision-making for incapacitated adults. It prescribes a process of and gives structure to substitute decision-making. The participation of the incapacitated adult must be encouraged where practicable. In addition to this, ‘the best interests checklist’ must be applied in every case before a practitioner can arrive at a reasonable belief that the action or decision taken on behalf of an incapacitated adult is in his best interests. Most commentators have shown goodwill towards the workings of the Act and want it to succeed.

The Mental Capacity Act 2005: Implications for health and social care providers in England and Wales

Journal of Management & Marketing in Healthcare ◽

10.1179/mmh.2007.1.1.88 ◽

2007 ◽

Vol 1 (1) ◽

pp. 88-97

Author(s):

Jim Symington

Keyword(s):

Social Care ◽

Mental Capacity ◽

Care Providers ◽

England And Wales ◽

Health And Social Care ◽

Is mental capacity in the eye of the beholder?

Advances in Mental Health and Intellectual Disabilities ◽

10.1108/amhid-11-2016-0035 ◽

2017 ◽

Vol 11 (2) ◽

pp. 30-39 ◽

Cited By ~ 4

Author(s):

Alex Ruck Keene

Keyword(s):

International Law ◽

Design Methodology ◽

Case Law ◽

Mental Capacity ◽

Persons With Disabilities ◽

England And Wales ◽

Content Type ◽

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.

The Mental Capacity Act 2005 and its potential impact on the use of restraint

Psychiatric Bulletin ◽

10.1192/pb.bp.107.016436 ◽

2008 ◽

Vol 32 (4) ◽

pp. 124-126 ◽

Cited By ~ 3

Author(s):

Arthur O. Owino

Keyword(s):

Common Law ◽

Mental Capacity ◽

Best Interest ◽

England And Wales ◽

Time Section ◽

The Common ◽

Potential Impact ◽

Care And Treatment ◽

The staged implementation of the Mental Capacity Act 2005 (further referred to as the Act) began in April 2007 and was completed in October 2007. The Act provides a comprehensive statutory framework for making decisions for people in England and Wales, aged 16 years and over, who lack capacity to make a particular decision at a particular time. Section 5 of the Act codifies the common law doctrine of necessity and provides a defence to anyone who performs an act in connection with the care and treatment of another person – in that person's best interest – reasonably believed to lack capacity in that matter.