scholarly journals 11VARIATION IN CAPACITY ASSESSMENT AND ADHERENCE TO THE MENTAL CAPACITY ACT AND DEPRIVATION OF LIBERTY SAFEGUARDS ACROSS A REGION: THE WESSEX EXPERIENCE

2017 ◽  
Vol 46 (suppl_1) ◽  
pp. i1-i22
Author(s):  
N Smith ◽  
F F A Rossiter ◽  
R Powis
Keyword(s):  
Mental Capacity ◽  
Capacity Assessment ◽  
Mental Capacity Act

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

Legal Studies ◽  
2009 ◽  
Vol 29 (3) ◽  
pp. 464-491 ◽  
Author(s):  
Mary Donnelly
Keyword(s):  
Functional Approach ◽  
Mental Capacity ◽  
Assessment Process ◽  
Fundamental Aspect ◽  
Capacity Assessment ◽  
Substantial Impact ◽  
Degree Of Protection ◽  
Practical Operation ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

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.

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

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 ◽  
Mental Capacity Act

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.

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

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 ◽  
Mental Capacity Act

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.

scholarly journals A Delphi survey of practitioner’s understanding of mental capacity

2018 ◽  
Vol 20 (5/6) ◽  
pp. 174-186
Author(s):  
George Clerk ◽  
Jason Schaub ◽  
David Hancock ◽  
Colin Martin
Keyword(s):  
Delphi Method ◽  
Design Methodology ◽  
Occupational Therapists ◽  
Mental Capacity ◽  
Capacity Assessment ◽  
Content Type ◽  
Professional Groups ◽  
Clinical Scenarios ◽  
Clinical Responses ◽  
Mental Capacity Act

Purpose The purpose of this paper is to present the findings of a study considering the application of the Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS). Practitioners from a range of professions were recruited to provide their views of how to respond to a variety of scenarios. GPs, nurses, social workers, physio/occupational therapists and care assistants were recruited to participate. Design/methodology/approach This study used the Delphi method to elicit participant views and generate consensus of opinion. The Delphi method recommends a large sample for heterogeneous groups, and round one had 98 participants from six different professional groups. Findings Participants did not respond consistently to the scenarios, but disagreed most significantly when patient decisions conflicted with clinical advice, and when to conduct a capacity assessment. These responses suggest that clinical responses vary significantly between individuals (even within settings or professions), and that the application of Mental Capacity Act (MCA) is complicated and nuanced, requiring time for reflection to avoid paternalistic clinical interventions. Originality/value Previous studies have not used a Delphi method to consider the application of MCA/DoLS. Because of this methods focus on developing consensus, it is uniquely suited to considering this practice issue. As a result, these findings present more developed understanding of the complexity and challenges for practitioner responses to some relatively common clinical scenarios, suggesting the need for greater clarity for practitioners.

Assessing capacity and decision-making

2020 ◽  
pp. 297-306
Author(s):  
Thomas McGowan ◽  
Adrian Blundell
Keyword(s):  
Decision Making ◽  
Mental Capacity ◽  
Best Interests ◽  
Capacity Assessment ◽  
Power Of Attorney ◽  
Case Vignettes ◽  
Advance Care ◽  
Mental Capacity Act ◽  
Cognitive Problems ◽  
Common Situation

This chapter, ‘Assessing capacity and decision-making’, explores mental capacity and the practical, legal, and ethical components of this common situation; the MCA (Mental Capacity Act) and its five statutory principles: the stages of capacity assessment; assessment of capacity in the context of cognitive problems; making decision for patients lacking capacity; determining patient’s best interests. Determining a patient’s best interests is often a complex area, and one in which family and friends can be uniquely placed to help you make this judgement. However, the relatives’ views have no legal standing in English law, and the decision must be made by the responsible professionals. With the help of excellent case vignettes, this chapter describes advance care planning, lasting power of attorney, IMCA (independent mental capacity advocate), DOLS (deprivation of liberty safeguards), The Court of Protection, and the implications of mental capacity on medical research.

‘Clear explanation’ in mental capacity assessment

2021 ◽  
pp. 1-3
Author(s):  
Gareth Owen ◽  
Nuala Kane ◽  
Alex Ruck Keene
Keyword(s):  
Mental Capacity ◽  
Capacity Assessment ◽  
England And Wales ◽  
Clear Explanation ◽  
Research And Education ◽  
Mental Capacity Act

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.

Audit of fidelity of clinicians to the Mental Capacity Act in the process of capacity assessment and arriving at best interests decisions

2011 ◽  
Vol 12 (3) ◽  
pp. 174-179 ◽  
Author(s):  
Oluwatoyin Sorinmade ◽  
Geraldine Strathdee ◽  
Catherine Wilson ◽  
Belinda Kessel ◽  
Obafemi Odesanya
Keyword(s):  
Mental Capacity ◽  
Best Interests ◽  
Capacity Assessment ◽  
Mental Capacity Act
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