Mental Capacity Act Research Articles

Using Technology to Improve the Mental Capacity Assessment and Deprivation of Liberty Safeguards Process.

The process of mental capacity act (MCA) assessment and depravation of liberty safeguarding (DoLS) was identified as an area for improvement. The project aimed to ensure that patients admitted to hospital for care and treatment were appropriately assessed if there is doubt about their mental capacity and that the subsequent legal process of DoLS is followed as needed. The project group sought to address this issue using clinical informatics through the electronic health record and data reports to re-design the process. User involvement was key to ensure the process and key pieces of documentation were designed to be easy for staff to use with responsibilities clearly defined. The importance of operational staff having good visibility of the end-to-end process was key to allow staff to identify and address any gaps in the process in real time without the need for escalation by the safeguarding team. A robust data report further supports the safeguarding team to effectively manage this group of vulnerable patients. The project has significantly increased appropriately the number of MCA assessments undertaken and subsequent DoLS applications submitted to local authority partners.

A Challenging Conundrum; Learning Disability, Schizophrenia and Autism - a Case Report

IntroductionPsychiatric disorders are common in patients with learning disabilities. There are also patients with the triad of autism, schizophrenia and learning disability. Patients with this background can be admitted to general hospitals for psychiatric or non-psychiatric reasons.We are presenting a case who had a very complicated clinical course and her discharge planning was challenging.ObjectivesThe objective of this work was to show the challenges in the investigation, medical management, and discharge planning of the patients with concomitant learning disability, schizophrenia and autism.MethodsWe scrutinized the patient’s casenotes, including blood results and all relevant imaging. We paid a particular attention to all the entries from the psychiatry team, general medical doctors, oncologists, learning disability team and discharge planners.ResultsThe lady had a protracted 4-month inpatient admission throughout which she was physically and verbally aggressive to hospital staff. She was deemed to lack capacity for hospital admission and treated in her best interests under Mental Capacity Act (MCA), frequently requiring sedation with Haloperidol and Lorazepam. Following consultation with the local Psychiatrist her medications were altered to: Risperidone 2 mg BD, Diazepam 5 mg OM, 5 mg afternoon and 10 mg evening, Procyclidine 5 mg BD, Chlorpromazine 25 mg BD, Promethazine 25 mg OD PRN, and Midazolam 10 mg buccal PRN.A change in her clinical condition was noted by the Psychiatry team; increased agitation, confusion and dysarthria. A repeat blood test was advised, due to patient refusal this took weeks to achieve despite the use of buccal Midazolam following Anaesthesiologist advice. Although blood tests were not significantly deranged, she was treated for presumed urinary tract infection with a course of antibiotics. A urine sample was unobtainable.She reported right breast pain and underwent a mammogram. This showed a hypoechoic lesion 8x7x9 mm. Following consultation with a Breast Surgeon and Oncologist, Letrozole was replaced with Tamoxifen. The Psychiatric team concluded that the clinical deterioration with dysarthria was related to anxiety, associated with Autistic patients. The movement disorder was deemed secondary to antipsychotics exacerbated by stress and anxiety.The patient’s discharge planning was complex. She was declined by numerous care homes. At time of writing, she remains an inpatient.ConclusionsThe management of patients with a triad of Learning Disability, Schizophrenia and Autism is extremely difficult, particularly within an acute medical setting. Physical deterioration could be related to medication adverse effects or change in environment. Anxiety and stress are linked to these conditions. The challenging behaviour that these patients often have will make discharge planning very difficult as specialised care homes to accommodate these unique patients are very limiteDisclosure of InterestNone Declared

“Engaging, interactive, not boring” – A new innovative tutorial programme for medical students with promising longevity at the University of East Anglia.

Introduction Medical students at the University of East Anglia (UEA) complete a psychiatry rotation in the fourth year of their MBBS degree. There are four rotations each academic year, in 2022-2023 there were 24 students per rotation. The rotation consists of two weeks of lectures, a four-week clinical placement, and then a further two weeks of lectures. Students are based across Norfolk and Suffolk for their clinical placements. Although case-based discussions occurred every Wednesday morning via Teams, there were no face-to-face small group teaching sessions during placement.ObjectivesTo design an interactive set of tutorials for medical students covering a wide range of psychiatric topics which can be easily delivered by other facilitators.MethodsThree 1.5 hour tutorials were created: 1)” Psychotic Bingo” - Students have a unique card with terms used in descriptive psychopathology to play Bingo, 2) “Medical ethics, mental health and the law” – Explores the case of Kerrie Wooltorton to discuss the mental capacity act, advanced decisions, and the mental health act, 3) “Team Quiz” – Played in groups and covers the different sub-specialties of psychiatry and pharmacology. Tutorials were only mandatory for students in Norwich (average 11 students per tutorial) due to a large geographical area across placements. Tutorials were delivered for three rotations between December 2022 – May 2023, the initial two rotations by the first author and the third rotation by other facilitators. Facilitators were provided with a tutorial guidance document to ensure consistency. The same feedback form was used to obtain qualitative and quantitative feedback from students at all tutorials.ResultsThe table below shows that feedback from students was consistently high, and there was little difference in average students rating between tutorials delivered by the first author and other facilitators. The predominant qualitative feedback was that the tutorials were “very interactive”, “engaging” and “fun”.Image:ConclusionsThis tutorial programme consistently received excellent feedback. The results show that the tutorials can be effectively delivered by other facilitators whilst maintaining a high standard, which ensures the programmes longevity. The tutorial programme is being formally implemented for all medical students at UEA from October 2023.Disclosure of InterestNone Declared

Using Conversation Analysis to explore assessments of decision-making capacity in a hospital setting.

Healthcare professionals (HCPs) have a responsibility to conduct assessments of decision-making capacity that comply with the Mental Capacity Act 2005 (MCA). Current best-practice guidance, such as the Mental Capacity Code of Practice and National Institute for Health and Care Excellence decision-making and mental capacity guidance, does not stipulate how to accomplish this in practice, for example, what questions should be asked, how options and information should be provided. In addition, HCPs struggle to assess the capacity of individuals with communication difficulties. This study was a service evaluation that aimed to objectively analyse, using Conversation Analysis (CA), how real-life capacity assessments were conducted in a hospital setting with patients with acquired brain injury (ABI)-related communication difficulties. A second aim was to establish the feasibility of using CA to advance knowledge of the conduct of capacity assessment. Four naturally occurring capacity assessments were video-recorded. Recordings involved speech and language therapists, occupational therapists, neuropsychologists and patients with communication difficulties as a result of ABI. The methods and findings of CA were used to investigate the interactional behaviours of HCPs and patients during assessments of decision-making capacity. The analysis was informed by our knowledge of the MCA best practice guidance. An overall structure of capacity assessment that enacted some of the best-practice MCA guidance was identified in one recording, consisting of six phases: (i) opening, (ii) preparation, (iii) option-listing, (iv) test, (v) decision, and (vi) close. The preparation phase consisted of two sub-components: information gathering and information giving. Variation from this structure was observed across the dataset, notably in the way in which options were (or were not) presented. CA is a feasible empirical method for exploring the structure and conduct of capacity assessments. CA identifies and provides ways of describing interactional behaviours that align with and diverge from best-practice MCA guidance. Future CA studies including a wider range of health and social care professionals and patients have the potential to inform evidence based training for HCPs who conduct assessments of decision-making capacity. What is already known on this subject The Mental Capacity Act (MCA) is poorly implemented in practice. Healthcare professionals (HCPs) find it challenging to assess the decision-making capacity of individuals with communication difficulties, and people with communication difficulties are often excluded from or insufficiently supported during capacity assessment. Research is limited to self-report methods. Observational studies of capacity assessment are required. What this study adds This is the first study to use Conversation Analysis (CA) to explore how capacity assessments are conducted in a hospital setting by HCPs with people with communication difficulties as a result of acquired brain injury. One video-recorded capacity assessment was structured in six phases that aligned with best practice MCA guidance. However, other capacity assessments deviated from this structure. One phase, option listing, varied in practice and options were not always presented. What are the clinical implications of this work? CA revealed interactional behaviours that align with and diverge from best-practice MCA guidance. Future CA studies are warranted to inform training for health and social care professionals who conduct capacity assessments.

1871 Encouraging Mental Capacity Act assessments in cognitively impaired or delirious patients over 65 at an orthopaedic hospital

Abstract Introduction The Mental Capacity Act (MCA) is designed to protect patients who may lack capacity to make decisions about their proposed treatment. At the Nuffield Orthopedic Centre (NOC), Oxford, nurses obtain a baseline abbreviated mental test score (AMTS) during the pre-operative assessment clinic. Post-operatively, the AMTS should be repeated with the 4AT to screen for delirium. If the AMTS is less than 8, or the patient is clinically believed to be delirious, then an MCA assessment should be undertaken and documented for the decision to accept treatment. The aim of this QI project was to widen this practice to all the junior doctors at the NOC. Method Baseline AMTS and MCA data were collected from one month of inpatients >64 years old at the NOC. Patients with post-op AMTS of <8 or those with delirium were identified and checked for documented MCA assessments. The results, teaching and training on capacity and consent were presented to the junior doctor team and a repeat audit cycle was performed to assess if the practice was being implemented. Results Data collected from 10/01/23 – 10/02/23 (n=125) showed that out of 10 patients meeting the AMTS criteria, only 4 had MCA assessments completed. Once the QI project was presented on 25/05/23, data collected from 12/06/23 – 15/07/23 showed that out of 5 eligible patients, 4 of them had MCA assessments documented. Conclusion Prior to this QI project, only 40% of patients with suspected cognitive impairment were undergoing an MCA assessment. Following the teaching and training to the junior doctors, the data collected shows that this figure had increased to 80%. In conclusion, this QI project has shown an improvement in appropriate application of the MCA. It should be repeated every 4 months to account for each new rotation of junior doctors.

Towards a ‘Social Model’ of Mental Capacity for Social Work

Abstract The statutory social work role in England and Wales regularly involves assessment and ‘best interests’ decision making under the Mental Capacity Act (MCA) 2005. Legal frameworks that permit substitute decision making have, however, been challenged as a contravention of the human rights of people with disabilities. This article aims to answer the question: ‘Can mental capacity be theorised for social work assessment in England and Wales in a way that is compatible with social work ethics and values?’ Findings are that mental capacity is a complex and disputed concept best described using a constructivist ‘social model’ which situates it as a property of an individual’s relationships. Such a model suggests that assessments are a joint endeavour and that the quality of the relationship between assessor and assessed is crucial. The present legal framework disincentivises but does not prevent capacity assessment based on a social model. The existing literature suggests that further research might identify ways in which social work capacity assessment could enhance rather than diminish the autonomy of the people involved. These findings have implications for social work research, education and post qualification training.

A97Applying the Mental Capacity Act through multi-disciplinary simulation - A successful pilot

An assessment of mental capacity involves determining if a person can make a decision, or whether this needs to be done in their best interests [1]. The Mental Capacity Act (MCA) 2005, provides a legal framework that protects people who might not be able to make decisions for themselves and guides professionals during their practice. Research has shown inconsistencies on how the Mental Capacity Act is applied in health and social care settings [2], therefore ensuring that professionals have are provided with the right support to confidently apply the act should be a priority. Simulation has been effectively used in healthcare education [3] and could also be implemented to support this area of practice. The Homerton Healthcare NHS Foundation Trust’s Simulation Team and Adult Safeguarding Team, jointly worked in developing a simulation-based session which focused on mental capacity assessments in different situations. The aim of these sessions was to increase participants’ confidence to assess mental capacity and to manage challenging conversations during assessment. Scenarios were designed for hospital and community settings, the topics covered included consent to treatment, self-discharge, compliance with treatment, substance misuse, mental health problems, dementia and learning disability. The target audience was senior healthcare professionals that are regularly involved in making decisions related to mental capacity. Scenarios were designed to be flexible and adaptable according to the attendants’ needs, for example the learning disability scenarios involved the use of easy read information that was specifically provided or created. Actors were used for the role of patients or relatives, and members of the adult safeguarding team were part of the faculty to support or lead the debrief process. Between January 2023 and February 2023, the faculty delivered 3 sessions, with a total of 20 participants from different professional groups including doctors, nurses and allied health professionals. Anonymous feedback was collected at the end of each session, with 84.62% ( Studies have shown that healthcare professionals’ confidence in applying the mental capacity act can vary [2]. Solely focusing on traditional forms of education might not be enough to prepare our workforce, in this case simulation-based training has provided a valuable tool to enhance participant’s abilities in relation to the mental capacity act and its application in healthcare practice. Authors confirm that all relevant ethical standards for research conduct and dissemination have been met. The submitting author confirms that relevant ethical approval was granted, if applicable.

The Assisted Decision-Making (Capacity) Act 2015: Interrogating the guiding principles for a person with dementia

Healthcare decision-making can present challenges for the person with dementia as many of the skills needed to navigate the decision-making process may be diminished or lost as a result of dementia. Currently in Ireland the law responds to this difficult dilemma by providing for a system of adult guardianship - and outside of that, a great deal of uncertainty. This is set to change when the Assisted Decision-Making Capacity Act (ADMCA) 2015 comes into force in the summer of 2022. The ADMCA aims to provide a modern statutory framework that supports decision-making by adults and enables them to retain the greatest amount of autonomy possible in situations where they lack or may shortly lack legal capacity. The Act aims to do this both through creating a set of guiding principles for decision-making and by the creation of formal decision-making agreements.This article aims to examine the guiding principles of the Act as they affect the person with dementia, and to assess the degree to which they will support and guide people with dementia and their healthcare professionals in making decisions. The guiding principles are of singular importance because they will govern any treatment decision by or for a person which is not the subject of a formal agreement. In interrogating the guiding principles of the Act the article seeks to identify ways in which the ADMCA differs from the equivalent legislation in England and Wales, the Mental Capacity Act (MCA) 2005. The MCA came into force in 2007 and therefore the discussion is informed by almost fifteen years operation of the MCA. The article will argue that not only is the ADMCA a huge step forward from the current position in Ireland but that a number of key differences between the MCA and the ADMCA mean that the ADMCA has the potential to be more empowering for the person with dementia.

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

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.dexter.penn.14@ucl.ac.uk

Staff Perceptions and Capability in using the Mental Capacity Act to Assess Decision Making in those with Acquired Brain Injury and Executive Dysfunction

AbstractThe purpose of this article is to establish the perceptions and capability of social care professionals (SCPs) in using the Mental Capacity Act (MCA) 2005 to assess decision-making capacity in those who have executive dysfunction and issues pertaining to the frontal lobe paradox, in comparison to health care professionals (HCPs). HCPs and SCPs from inpatient and community neurorehabilitation teams, social care teams and a best interest assessor team were contacted via convenience sampling and participated in semi-structured interviews. Data from these consultations were analysed using a form of thematic analysis known as template analysis. Four over-arching template themes were identified: ‘assessment structure’, ‘implications of brain injury’, ‘professionals’ capability/expertise’ and ‘consent, self-report and mental capacity’. The findings suggest that SCPs would benefit from bespoke practice guidance designed to help with the application of the MCA with the acquired brain injury/long-term neurological conditions population—particularly where there is a concern about a person’s ability to understand, apply or use information outside of an assessment or supportive conversation.

COVID-19 and the Mental Capacity Act in care homes: Perspectives from capacity professionals.

This study explores the experiences of professionals who worked with care home residents with impaired mental capacity in England and Wales during the COVID‐19 pandemic. It explores (i) how competing risks were balanced and (ii) how the Mental Capacity Act (MCA) functioned in care homes under pandemic conditions, with particular focus on its associated Deprivations of Liberty Safeguards (DoLS) and Independent Mental Capacity Advocacy (IMCA) systems. Between March and May 2021, we held an online survey and five focus groups aimed at professionals who worked in or with care homes during the pandemic. The study explored issues pertaining to residents with impaired mental capacity, alongside several other topics on which we report elsewhere. For this paper, we filtered data to only include responses from ‘capacity professionals’. The resulting sample comprised 120 (out of 266) survey participants and 18 (out of 22) focus group participants. We performed manifest content analysis on the filtered data and found that (1) participants reported a ‘massive discrepancy’ between the ways different care homes balanced the risk of COVID‐19 infection with the risks associated with severe restrictions. (2) Some suggested this was due to vague guidance, as well as care home type and size. Participants told us the pandemic (3) obstructed smooth operation of statutory safeguards designed to protect residents’ human rights and (4) resulted in confusion about the remit of the MCA during a public health crisis. Our findings raise concerns about the impact of pandemic‐related measures upon care home residents with impaired mental capacity. We urge further exploration and analysis of (a) the variability and inconsistency of restrictions applied at care homes, (b) the strain placed on key safeguards associated with the MCA, (c) uncertainty about the remit of the MCA during a public health crisis and (d) the human rights implications hereof.

Implementation of the Mental Capacity Act: a national observational study comparing resultant trends in place of death for older heart failure decedents with or without comorbid dementia

BackgroundHeart failure (HF) is increasingly prevalent in the growing elderly population and commonly associated with cognitive impairment. We compared trends in place of death (PoD) of HF patients with/without comorbid dementia around the implementation period of the Mental Capacity Act (MCA) in October 2007, this legislation supporting patient-centred decision making for those with reduced agency.MethodsAnalyses of death certification data for England between January 2001 and December 2018, describing the PoD and sociodemographic characteristics of all people ≥ 65 years registered with HF as the underlying cause of death, with/without a mention of comorbid dementia. We used modified Poisson regression with robust error variance to determine the prevalence ratio (PR) of the outcome in dying at home, in care homes or hospices compared to dying in hospital. Covariates included year of death, age, gender, marital status, comorbidity burden, index of multiple deprivation and urban/rural settings.ResultsOne hundred twenty thousand sixty-eight HF-related death records were included of which 8199 mentioned dementia as a contributory cause. The overall prevalence proportion of dementia was 6.8%, the trend significantly increasing from 5.6 to 8.0% pre- and post-MCA (Cochran-Armitage trend test p < 0.0001). Dementia was coded as unspecified (78.2%), Alzheimer’s disease (13.5%) and vascular (8.3%). Demented decedents were commonly older, female, and with more comorbidities. Pre-MCA, PoD for non-demented HF patients was hospital 68.2%, care homes 20.2% and 10.7% dying at home. Corresponding figures for those with comorbid dementia were 47.6%, 48.0% and 4.2%, respectively. Following MCA enforcement, PoD for those without dementia shifted from hospital to home, 62.5% and 17.2%, respectively; PR: 1.026 [95%CI: 1.024–1.029]. While home deaths also rose to 10.0% for those with dementia, with hospital deaths increasing to 50.4%, this trend was insignificant, PR: 1.001 [0.988–1.015]. Care home deaths reduced for all, with/without dementia, PR: 0.959 [0.949–0.969] and PR: 0.996 [0.993–0.998], respectively. Hospice as PoD was rare for both groups with no appreciable change over the study period.ConclusionsOur analyses suggest the MCA did not materially affect the PoD of HF decedents with comorbid dementia, likely reflecting difficulties implementing this legislation in real-life clinical practice.

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

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...

Applying decision-making capacity criteria in practice: A content analysis of court judgments.

Background/ObjectivesMany jurisdictions use a functional model of capacity with similar legal criteria, but there is a lack of agreed understanding as to how to apply these criteria in practice. We aimed to develop a typology of capacity rationales to describe court practice in making capacity determinations and to guide professionals approaching capacity assessments.MethodsWe analysed all published cases from courts in England and Wales [Court of Protection (CoP) judgments, or Court of Appeal cases from the CoP] containing rationales for incapacity or intact capacity(n = 131). Qualitative content analysis was used to develop a typology of capacity rationales or abilities. Relationships between the typology and legal criteria for capacity [Mental Capacity Act (MCA)] and diagnoses were analysed.ResultsThe typology had nine categories (reliability: kappa = 0.63): 1) to grasp information or concepts, 2) to imagine/ abstract, 3) to remember, 4) to appreciate, 5) to value/ care, 6) to think through the decision non-impulsively, 7) to reason, 8) to give coherent reasons, and 9) to express a stable preference. Rationales most frequently linked to MCA criterion ‘understand’ were ability to grasp information or concepts (43%) or to appreciate (42%), and to MCA criterion ‘use or weigh’ were abilities to appreciate (45%) or to reason (32%). Appreciation was the most frequently cited rationale across all diagnoses. Judges often used rationales without linking them specifically to any MCA criteria (42%).ConclusionsA new typology of rationales could bridge the gap between legal criteria for decision-making capacity and phenomena encountered in practice, increase reliability and transparency of assessments, and provide targets for decision-making support.

Unethical governance: capacity legislation and the exclusion of people diagnosed with dementias from research

This paper considers the potential for the Mental Capacity Act (MCA) of England and Wales to incentivise the exclusion of people with dementia from research. The MCA is intended to standardise and safeguard the inclusion of people with cognitive impairments in research. This entails various procedural requirements, which in pressurised research contexts can lead researchers to exclude people with dementia as a means of simplifying bureaucratic constraints. I consider the risks of an ‘unethical ethics’, wherein procedural ethics indirectly causes the exclusion of people with dementia from research, undermining historic successes toward increased inclusivity. I suggest several solutions, including enhanced sensitivity to impairments and shifting the burden of proof from justifying inclusion to justifying exclusion. The paper responds to the ‘ethics creep’ tradition in procedural ethics, and critical appraisals of capacity legislation in dementia research. This approach recognises that institutional research ethics is itself a major ethical concern and can unwittingly beget unethical practices. Dementia researchers must be alert to such unethical ethics.

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

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...

Practitioners’ experiences of the mental capacity act: a systematic review

Purpose 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. Design/methodology/approach 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. Findings 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. Practical implications 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. Originality/value 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.

Knowledge of mental capacity assessment in staff working with people with learning disabilities

PurposeThe purpose of this paper is to evaluate staff knowledge of Mental Capacity Act (MCA) capacity assessments within the Learning Disabilities division of a Mental Health and Learning Disabilities Trust. The limited research available suggests staff knowledge tends to be poor, particularly concerning who is the decision maker.Design/methodology/approachA 12-item multiple choice questionnaire, which reflects the five core principles of MCA (2005), was developed. Questionnaires were completed by 262 health and social staff members who support people with LD.FindingsResults show high variability of MCA capacity assessment knowledge within the LD division. However, qualified staff and those from health services scored significantly higher across all categories on the questionnaire compared to non-qualified and social care staff, respectively. On average, all staff scored poorly when asked to identify “who is the decision maker?” in a case scenario question.Research limitations/implicationsThe main limitation is that we did not collect data on how many previous capacity assessments and discussions each person had been involved with. The findings clearly suggest current methods of training lack efficacy in helping staff apply MCA knowledge to their clinical work.Originality/valueCompared to past literature, this study utilised a novel and more comprehensive questionnaire. This focused on case scenario questions to assess staff situational judgement. In addition, the findings add to a sparse evidence base that provides a foundation for future research.

Powers of Attorney and ‘Lack of Capacity’ under the Mental Capacity Act 2005: A Narrowing of the s 44 Offence? R v Kurtz [2018] EWCA Crim 2743

The Mental Capacity Act (MCA) 2005 marked a turning point in the statutory rights of people who may lack capacity. The legislation sought to place the individual at the centre of decision-making and was viewed as having the potential to give people a voice and an opportunity to be heard. Section 44 of the legislation introduced a criminal offence of ‘ill treatment or neglect’ of a person who lacks capacity. The maximum sentence of five years’ imprisonment (or a fine or both) was intended to underly the seriousness of the offence, especially considering the vulnerability of potential victims. Interpreting s 44 has, however, proved a real challenge and the courts have acknowledged the difficulties which its drafting presents. The recent Court of Appeal (COA) decision in R v Kurtz is illustrative of the kind of issue that the statute has generated. The court was tasked with deciding whether proving a lack of capacity on the part of the victim is required when the donee of a power of attorney is charged with the offence under s 44(1)(b). This article considers Kurtz within the context of the MCA 2005 and notes three related COA decisions. It examines what impact Kurtz may have on future prosecutions brought under s 44(1)(b) and considers the future of the s 44 criminal charge more generally.

Behind the cloak of competence: brain injury and mental capacity legislation

PurposeBrain Injury Case Managers (BICMs) work closely with individuals with Acquired Brain Injury (ABI), assessing needs, structuring rehabilitation interventions and providing support, and have significant experience of clients with impairments to decision making. The purpose of this paper is to explore the application of the Mental Capacity Act (MCA) and its guidance when applied to ABI survivors. This research aimed to: first, highlight potential conflicts or tensions that application of the MCA might pose, and second, identify approaches to mitigate the problems of the MCA and capacity assessments with ABI survivors. It is hoped that this will support improvements in the services offered.Design/methodology/approachUsing a mixed method approach, 93 BICMs responded to an online questionnaire about decision making following ABI. Of these, 12 BICMs agreed to take part in a follow-up semi-structured telephone interview.FindingsThe data revealed four main themes: disagreements with other professionals, hidden disabilities, vulnerability in the community and implementation of the MCA and capacity assessments.Practical implicationsThe findings highlight the need for changes to the way mental capacity assessments are conducted and the need for training for professionals in the hidden effects of ABI.Originality/valueLimited research exists on potential limitations of the application of the MCA for individuals with an ABI. This paper provides much needed research on the difficulties surrounding mental capacity and ABI.