‘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.

Mental Capacity Act 2005

This chapter covers the Mental Health Act 2005 and includes topics on The Core Test for Mental Capacity, The Obligation to Assist a Person to Gain Capacity, The Best Interests Assessment when a Patient Lacks Capacity, Non-Discrimination in Best Interests Assessment, Derivation of Liberty: General Principles, Derivation of Liberty: Life-Saving Treatment, Protection for Those Wrongly Assessing Capacity Or Best Interests, Definition of a Lasting Power of Attorney, General provisions on advanced directives, Effect of an advance decision, The Effect of Advance Decisions, Things that the Mental Capacity Act cannot authorise, and Authorising of Deprivation of Liberty.

‘Turning up the volume’: Increasing respect for the wishes and feelings of women with intellectual impairment in decisions about their reproductive rights in England and New Zealand

In 2004 a New Zealand Family Court Judge ordered that two extremely serious and irreversible interventions (termination of pregnancy and sterilization) be carried out on a 29-year-old woman, with mild to moderate intellectual disability, over her strenuous objection. Though her appeal was partially successful, an option which both respected her wishes and feelings and in all likelihood better promoted her best interests was not explored. A decade later, another Family Court judge held that it was in the best interests of a young woman with Down syndrome to be sterilized for contraceptive purposes, in spite of her indication that she might wish to have babies one day. The decisions were made under NZ’s adult guardianship legislation, into which courts have incorporated a best interests principle, which they have interpreted broadly. But, in contrast to the Mental Capacity Act 2005 (MCA), NZ’s statute lacks any requirement for decision-makers to take into account the wishes and feelings of the person with mental impairment. That requirement has been the catalyst for a more-empathetic, person-centric interpretation in English case law. Further reform to the MCA is advocated for, which would give formal primacy to P’s wishes and feelings through presumptions or special phrases, as well as requiring a reasoned justification for departing from them. The Convention on the Rights of Persons with Disabilities goes even further: the article 12 right to legal capacity requires respect for the ‘will and preferences’ of people with mental impairments and controversially, according to the UN Committee’s interpretation, requires the replacement of substitute decision-making regimes based on best interests with supported decision-making frameworks based on a person’s will and preferences.

A systematic review and narrative synthesis of the research provisions under the Mental Capacity Act (2005) in England and Wales: Recruitment of adults with capacity and communication difficulties

Background The Mental Capacity Act (MCA, 2005) and its accompanying Code of Practice (2007), govern research participation for adults with capacity and communication difficulties in England and Wales. We conducted a systematic review and narrative synthesis to investigate the application of these provisions from 2007 to 2019. Methods and findings We included studies with mental capacity in their criteria, involving participants aged 16 years and above, with capacity-affecting conditions and conducted in England and Wales after the implementation of the MCA. Clinical trials of medicines were excluded. We searched seven databases: Academic Search Complete, ASSIA, MEDLINE, CINAHL, PsycArticles, PsycINFO and Science Direct. We used narrative synthesis to report our results. Our review follows Preferred Reporting Items for Systematic Reviews and is registered on PROSPERO, CRD42020195652. 28 studies of various research designs met our eligibility criteria: 14 (50.0%) were quantitative, 12 (42.9%) qualitative and 2 (7.1%) mixed methods. Included participants were adults with intellectual disabilities (n = 12), dementia (n = 9), mental health disorders (n = 2), autism (n = 3) and aphasia after stroke (n = 2). We found no studies involving adults with acquired brain injury. Diverse strategies were used in the recruitment of adults with capacity and communication difficulties with seven studies excluding individuals deemed to lack capacity. Conclusions We found relatively few studies including adults with capacity and communication difficulties with existing regulations interpreted variably. Limited use of consultees and exclusions on the basis of capacity and communication difficulties indicate that this group continue to be under-represented in research. If health and social interventions are to be effective for this population, they need to be included in primary research. The use of strategic adaptations and accommodations during the recruitment process, may serve to support their inclusion.

The Court of Protection: expert witness and professional reports

SUMMARY The Court of Protection has the legal jurisdiction to make decisions about people who lack capacity to make decisions themselves (in England and Wales). When hearing cases, evidence can be provided to the court by expert witnesses and professionals. The Court of Protection Rules 2017 inform the practice and procedure within the Court of Protection. This article reviews the judgment from a Court of Protection case that analyses the proper role of the expert witness in the court. In doing so the article provides guidance to authors of expert witness reports and reports under section 49 of the Mental Capacity Act 2005 submitted as evidence to the court.

06 Speak to me: a literature review examining the participation of people living with dementia during healthcare interactions

BackgroundPeople living with dementia have frequent encounters with ambulance services and have a high risk of mortality when admitted to hospital. The Mental Capacity Act and the National Institute for Health and Care Excellence (NICE) guidance provide a framework for all healthcare practitioners to support the person living with dementia into making their own healthcare decisions and encourages participation regardless of capacity status.The purpose of this study was to understand if people living with dementia are afforded these opportunities to participate in healthcare decisions during interactions with paramedics and what key themes affect participation.MethodsElectronic database search of literature, based on keywords, of EBSCO (searching MEDLINE and CINAHL), hand-sifting, and grey literature.Articles were searched for pre-hospital care, Paramedic, EMS, EMT but yielded few results and the terms Doctor, Nurse, Healthcare Professional were added to search matrix. Included articles focused on decision making, participation, were under 10 years old and UK based. 1 exception was made for a Norwegian study focusing on participation.Articles were reviewed multiple times in a meta-synthesis to find themes within each article. Data was grouped, coded and categorised based on themes.ResultsThe findings illustrate that people living with dementia wish to retain autonomy and should be afforded the opportunity to participate in their own decision making regardless of capacity. Good and bad practice occurs, but many people living with dementia are marginalised, manipulated or have decisions taken from them.ConclusionParamedics need to engage with people living with dementia during all encounters regardless of the severity of the person’s dementia or capacity status. They need to take time to give the person every opportunity to participate, not be influenced by someone who is not the patient and aim to be more inclusive of the patient. Further primary research is required to fully understand the quality of interactions between paramedics and people with dementia.